taken before d'lois l. jones, certified shorthand reporter ...€¦ · shorthand reporter in...
TRANSCRIPT
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* * * * * * * * * * * * * * * * * * * *
MEETING OF THE SUPREME COURT ADVISORY COMMITTEE
January 12, 2001
(MORNING SESSION)
* * * * * * * * * * * * * * * * * * * *
Taken before D'Lois L. Jones, Certified
Shorthand Reporter in Travis County for the State of
Texas, reported by machine shorthand method, on the 12th
day of January, 2001, between the hours of 9:11 a.m. and
12:17 p.m., at the Texas Law Center, 1414 Colorado, Room
101, Austin, Texas 78701.
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INDEX OF VOTES
Votes taken by the Supreme Court Advisory Committee duringthis session are reflected on the following pages:
Vote on Paae
Recusal 3309Recusal 3323Recusal 3342Recusal 33,43
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CHAIRMAN BABCOCK: Welcome, everybody.
Sorry, we're starting a couple minutes late. Bill, let's
get started. Okay. We have the agenda, and we have some
honored guests with us, which we will get to in a minute,
and we will start as usual with the report from Justice
Hecht as to what the Court is or is not doing with our
handiwork.
JUSTICE HECHT: We're thinking about summary
judgment and should approve it, I hope, forthwith; and the
only reason for any delay at all has been that we were
hoping to have something to put with it, like the recusal
rule or the TRAP rules or something, rather than just do
one by itself. But if we don't have anything else then
we're going to go ahead and do it because we know that one
of the committees of the House of Representatives has
indicated in an interim report that they would be glad if
we do that, so that's what we're going to do on that.
On TRAP 47, we're still waiting for the
courts of appeals to kind of mull it over. Almost all the
feedback has been positive, but since it affects the work
of all those judges very intimately, we want to be sure
that they are comfortable with the end result. And on
voir dire, again, we have not talked about the voir dire
proposal itself yet, but it's behind the other two.
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Certainly behind summary judgment.
CHAIRMAN BABCOCK: Great. Thanks, Justice
Hecht. On the voir dire rule, I don't know how many
people have had an opportunity to read the report that
Representative Bosse put together about our committee and
about some issues like summary judgment that were being
studied, but I'm going to try to get a copy of that page
of the report that deals with our discussion about that,
because I think that there are some incomplete or
inaccurate statements about it.
And the issue was this: As you may
recall -- and, Paula, remind me if this is right or not,
but as you recall, the subcommittee met and unanimously
recommended two matters. In other words, unanimity on two
issues, and then four members of the subcommittee didn't
think there were any reasons for any additional changes,
while a minority of the subcommittee thought there should
be additional changes; and we came up and we debated the
whole thing and then sent to the Court the rule that we
came up with. I
We were criticized for having that debate,
even though a majority of our subcommittee thought there
was no reason for any further change in the rule; and the
result of that, according to the committee, is that they
think we should have some sort of parliamentary rules or
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practices beyond what we have. So I have authored a
letter in response to that, which I will pass out to you
either today or tomorrow. But, Paula, is my recollection
of the facts correct?
MS. SWEENEY: Yeah.
CHAIRMAN BABCOCK: Okay. And my view of it
is that if the Court sends us an issue to study, we will,
as our practice dictates, refer it to a subcommittee to be
looked at, and then the subcommittee will come back and
report to us and then our full committee will decide what
to do. But the fact that a majority of the subcommittee
thinks that there's no need for change doesn't mean we
don't debate it. We may ultimately, as we did here,
conclude as the subcommittee did that there isn't any need
for any further action, but that doesn't mean our full
committee doesn't debate the issue.
MS. SWEENEY: And, Chip, to clarify, I said
"yes," but as a precursor to all of that, the initial vote
of the subcommittee was that the majority felt there was
no need for a voir dire rule at all. Then when we
decided, okay, well, hypothetically since we didn't think
we should then just turn around and tell the Court, "No,
we're not drafting one." And so we then said, "All right,
if there is going to be a rule," and then pick up with
what you said, everybody agreed about the first two
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components and then there was only a couple of folks who
wanted the other parts we brought forward, which is
essentially what this group ended up doing. But we felt,
as you just said, that the Court had asked this group to
advise and that, therefore, it wasn't our job to say "no."
CHAIRMAN BABCOCK: Yeah.
MS. SWEENEY: "We won't be advising."
CHAIRMAN BABCOCK: I suppose there may be
some instance someday where they ask our advice and our
collective advice is, you know, "Forget about it. This is
not a problem," but certainly a subcommittee can't make
the decision. It's the whole group of us that will have
to make that decision.
JUSTICE HECHT: That's what the committee
did on recusal, but the Court felt like to be responsive
to last -- some comments made during the last session that
we just couldn't do that. We were going to have to do
something, and even if the product that we come up with
ultimately doesn't make it for some reason, I mean, I
think we still have to go through the whole process before
we say we won't work on it.
Then parental notification is in the
marginal and will take effect March 1st, and we have not
received any comments on those, and the Court has asked me
to refer two other matters to the committee. I have got a
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letter here to Chip, and they are fairly minor things, but
there is a split in the Houston courts over whether Rule
245, which requires that lawyers get notice of trial
settings, means that they must get actual notice or have
the clerk just send it to the last known address.
And the other issue is whether the rules
should provide for some review of a court's refusal to
abate cases when there's litigation pending in multiple
courts. The current state of the law is you can't get
that unless the courts are acting in direct conflict.
CHAIRMAN BABCOCK: Okay, this -- oh, I'm
sorry. Yes.
MR. TIPPS: Chip, maybe we're going to talk
about this later, but going back to your comment about the
criticism that was directed at our deliberations, do I
understand we were criticized for debating and discussing
the voir dire rule, given the fact that the committee had
recommended no rule?
CHAIRMAN BABCOCK: The subcommittee, right.
MR. TIPPS: And if so, what's the basis for
the criticism?
CHAIRMAN BABCOCK: Well, you know, I don't
know. I will let you read it from the report. We will
get -- it's just one single page.
MS. SWEENEY: The sense I got was that if we
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were a legislative -- if we were the Legislature and the
committee had said, "We're not voting this out in
committee" then it would never come to the floor, and that
was the kind of parallel, but --
MR. YELENOSKY: We don't have that.
MS. SWEENEY: I didn't get elected. I
think --
CHAIRMAN BABCOCK: Are you sure about that?
MS. SWEENEY: Yeah. I don't know that we
can or should, you know, take that as an exact parallel.
CHAIRMAN BABCOCK: Yeah, Buddy.
MR. LOW: Chip, isn't it true that we were
faced with the Legislature? There was a proposal in the
Legislature to pass this thing where you're going to get
so many hours of voir dire and everything, so we were kind
of under a directive or under some pressure to do
something, weren't we?
CHAIRMAN BABCOCK: Right. Yeah. I think we
take directions from the Court, but I think the Court was
sensitive to what the Legislature was saying. Yeah. No
question about it.
Okay. Frank and I had -- Frank Gilstrap and
I had a meeting with Senator Harris about the recusal
rule; and just when we thought we had the thing the way we
needed it, the Senator raised some additional issues; and
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I think we finally got to the genesis of the statute, the
tertiary recusal statute; and Senator Harris was very
gracious and receptive to our rule, but thinks that
there's still some issues that we haven't addressed and
referred us to two judges in Tarrant County, Judge Harris
and Judge McCoy, who are here today; and we thank them for
joining us.
You may have seen that in the middle of
December or so that Judge McCoy sent us a letter. It's
behind Tab 2.3(b), regarding the recusal rule; and some of
you may have had a chance to read it, some not; but I'd
like to ask Judge McCoy to kind of take us through what
his concerns were; and it's really his case that led to
Senator Harris' bill, I think. So, judge -- yeah, Frank.
MR. GILSTRAP: Chip, in light of -- to make
the record totally clear, Judge McCoy didn't send that
letter to the committee. He sent it to the people that it
was addressed to and people that he's been -- worked with
professionally for a long time, and I have assured him
that this committee is no stranger to lively debate and
collegiality, and I went ahead and forwarded it on to
Chip. So he sent to it me, and I sent it to the
committee.
CHAIRMAN BABCOCK: Okay, thanks. Judge.
HONORABLE ROBERT McCOY: Well, I was sitting
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in my office one day minding my own business, and the
phone rings, and it's Senator Harris' office, and
apparently Chip and Frank Gilstrap were sitting there
having a lively discussion with the Senator about the
proposed changes to the recusal rule, which I hadn't seen.
And so then I was basically asked to expound on the,
recusal rule; and subsequently Jeff Walker, who is the
administrative regional judge for our area, I think Region
8, and I went over the proposed changes, which we had then
sent to us; and we wrote a letter to Frank and to Chip and
to Senator Harris; and then I don't know exactly how we
got from there to me being here today, but I am.
Now, my experience with the recusal rule
comes from disciplinary cases; and Judge Walker's
experience comes from being the regional administrative
judge when he hears recusals all the time; and he wanted
me to express his view that he doesn't think that the rule
needs to be whole -- in a wholesale fashion rewritten; and
that, second, if it needs to be rewritten, that the change
that needs to be made is the teeth need to be put into the
recusal bill or the recusal rule, because he's seen an
explosion of recusal motions in our region.
If our region is having it, I'm assuming
that it's everywhere, and he, I believe, would like to
incorporate the Senator's bill or 30.016 into the rule so
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that he has some teeth in the rule that he -- so that he
can deal with these recusals as they come up.
Now, Chip, do you want me to kind of walk
through my letter and --
CHAIRMAN BABCOCK: Yeah.
HONORABLE ROBERT McCOY: -- hit a few
highlights or lowlights, or what would you like for me to
do?
CHAIRMAN BABCOCK: Yeah. I think it would
be helpful to walk through your letter,.and then Richard
Orsinger and Carl Hamilton were the two members of this
committee who worked on the subcommittee and tried to get
this recusal rule in place, so as we go through these
items maybe we can have a short discussion item-by-item
about what the rule that we've got in draft form right now
says about these things and whether or not there's a sense
that we should revise our rule to meet the comments that
you're making.
HONORABLE ROBERT McCOY: All right. I guess
my first sort of question was the very first part of the
rule, grounds for recusal. "A judge must recuse in the
following circumstances," and I was wondering if that
means "if requested to do so."
CHAIRMAN BABCOCK: I think I know the answer
to that, but, Carl.
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HONORABLE ROBERT McCOY: As opposed to just
automatically, because I know situations where the lawyers
decide they don't want the judge to recuse himself, and
yet this says it applies automatically. You are recused.
CHAIRMAN BABCOCK: Carl.
MR. HAMILTON: I think that the judge has a
good point there, because the rule -- and I don't think we
messed with this language. I think this just came from
the recodification where it says "a judge must recuse";
and I do think that is sort of ambiguous when we talk
about waiver later on; and it raises the question about
whether or not the judge himself has an obligation to come
forward and recuse as any of these things exist or whether
he just has to wait to be requested. So I do think that's
not clear in the rule.
CHAIRMAN BABCOCK: So how do we fix that?
HONORABLE ROBERT McCOY: How about putting
the word "if requested" at the end of that line?
CHAIRMAN BABCOCK: It seems simple. Sarah.
Your Honor.
HONORABLE SARAH DUNCAN: It seems to me that
what the rule as written requires is that either the judge
must recuse or make full disclosure on the record and then
the parties can waive it. If you change it to "if
requested" then you've obviated the full disclosure
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requirement.
MR. EDWARDS: Can't you just refer to
subparagraph (c), unless the dis -- unless the ground for
recusal is waived by the parties? (C) says, "Waiver. The
parties to a proceeding may waive any ground for recusal
after it's fully disclosed on the record." So if you come
back up here to the "must" part of it and say "must,
unless waived under (c), recuse," something like that.
CHAIRMAN BABCOCK: Well, okay. Richard.
MR. ORSINGER: I would support Bill's
suggestion. I really think the language should say "a
judge must recuse unless waived," because in the first
analysis we're giving directions to the court of when to
take themselves out of a case; and if the parties say,
"Well, we know that the grounds for recusal exist, but
we're willing to waive it because we want to overlook it
and we want to keep you in the case," that's fine; but I
really feel like it should stay mandatory unless the
parties expressly waive that nature; and I think the judge
should be permitted to recuse if they want to even if the
parties don't want the judge to recuse. So it should be a
waiver issue.
CHAIRMAN BABCOCK: Yeah. What you're saying
is if you put "if requested," that that might be limiting
on the judges who want to self-recuse.
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MR. ORSINGER: Yeah. I'm worried that even
if both parties want to waive it, the judge should have
the freedom to get out of the case if he or she does not
feel comfortable because of some other circumstances in
their life. I don't know if everyone agrees with that.
MR. EDWARDS: I think if the circumstances
of the sitting are'such that the outside world is going to
look at it and say it stinks, the judge has a duty to get
out, even if the parties say, "We don't care if it stinks.
We're going to put our gas mask on and go ahead."
CHAIRMAN BABCOCK: Okay. So how would we
suggest putting language in to accommodate what you're
talking about?
HON. F. SCOTT McCOWN: How about if we just
said "except as provided in subdivision (c), a judge must
recuse in the following circumstances"?
CHAIRMAN BABCOCK: Judge McCoy, does that do
it for you or not?
MR. ORSINGER: Well, but that doesn't answer
the question of whether a judge could recuse even if the
parties want him to stay. How do you feel about that?
HONORABLE ROBERT McCOY: I think the judge
should be able to step down whenever he feels it is
appropriate to do so, but I think that also he shouldn't
automatically have to recuse himself if that's not the
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circumstance and the lawyer doesn't feel -- the lawyers do
not feel that it's warranted.
CHAIRMAN BABCOCK: Would the concept of
waiver as opposed to request satisfy both needs or not?
MR. EDWARDS: You might want to add
something to the waiver part that says the judge -- the
waiver doesn't bind the judge or something.
PROFESSOR DORSANEO: I want to second Scott
McCown's suggestion.
CHAIRMAN BABCOCK: Okay.
HON. F. SCOTT McCOWN: And could I point out
that --
CHAIRMAN BABCOCK: Could you restate that,
Judge?
HON. F. SCOTT McCOWN: I mean, this goes
back to a philosophical point. We don't have to write
down in the rules everything we think of. Nobody has ever
suggested in the history of man that you could force a
judge to hear a case if the judge wanted to recuse him or
herself. We don't need to put that in a rule. But to
address the problem that Judge McCoy I think has raised,
we can simply cross-reference subdivision (c).
CHAIRMAN BABCOCK: Okay. So your language
was again, "except" -
HON. F. SCOTT McCOWN: "Except as provided
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in subdivision (c)," comma, "a judge must recuse in the
following circumstances."
HONORABLE JOHN CAYCE: Yeah.
CHAIRMAN BABCOCK: Does that -- does that
allow the judge and the parties to sit down and say,
"Look, I'm likely to be a material witness, but I'm
comfortable with staying in here if you guys are"?
HON. F. SCOTT McCOWN: Well, that's what
subdivision (c) says. "The parties to a proceeding may
waive any ground for recusal after it is fully disclosed
on the record." So you would sit down, talk to them,
disclose it on the record, get their agreement that they
wanted you to be the judge, and move forward.
CHAIRMAN BABCOCK: Okay. So by
incorporating the waiver part into this subpart (b), you
are implicitly saying if everybody waives, everybody is
okay with it, you can stay.
HON. F. SCOTT McCOWN: You're expressly
saying that.
CHAIRMAN BABCOCK: Okay.
PROFESSOR DORSANEO: It's a drafting
problem. It really never was an inconsistency.
CHAIRMAN BABCOCK: Yeah. I agree with that.
Judge McCoy, does that get it done for you?
HONORABLE ROBERT McCOY: (Nods head.)
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CHAIRMAN BABCOCK: How does everybody feel
about adding that language? Is that okay, Judge Cayce?
HONORABLE JOHN CAYCE: I think so.
CHAIRMAN BABCOCK: Hatchell?
MR. HATCHELL: I'm opposed to that.
CHAIRMAN BABCOCK: Huh?
MR. HATCHELL: I'm opposed to that.
CHAIRMAN BABCOCK: You know, I could sense
that you were. Why?
MR. HATCHELL: I think I agree with Sarah
that once you start dumbing down the concept of mandatory
recusal, what you're doing, you're putting the exception
first in the rule; and I know of many venues where the
judges who know they're recused will put pressure on the
parties to agree.
PROFESSOR DORSANEO: Mr. Chairman?
CHAIRMAN BABCOCK: Yeah.
PROFESSOR DORSANEO: I was thinking the same
thing, Mike, when I heard Judge McCoy talk about how this
is all going to be fine with everybody, and that's why the
request language, you know, was suggested, but I think
it's not -- it still keeps the priorities right drafted
this way. "The judge must recuse." That's the real
thrust of this, but waiver, that's far different from "The
judge, if requested," you know, "must recuse." It puts
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the dynamics of the situation in a whole different context
for me, and I'm sensitive to what you and Justice Duncan
think about this and agree with you, but I think it's all
right to do it.
MR. HATCHELL: I would have a tiny bit less
indigestion if instead of saying "except" as a first
clause you would end the first clause by saying "unless."
MR. YELENOSKY: Right.
CHAIRMAN BABCOCK: Okay. "A judge may
recuse in the following circumstances, unless" --
MR. HATCHELL: Whatever.
CHAIRMAN BABCOCK: "Unless waived pursuant
to subdivision (c)"?
HON. F. SCOTT McCOWN: I'll accept that
amendment. Because it will really restrain those judges
who will put pressure on you otherwise.
CHAIRMAN BABCOCK: Okay. How does everybody
feel about that? Do we want any more discussion on this?
Anybody want to move to adopt this?
HON. F. SCOTT McCOWN: I've moved and --
CHAIRMAN BABCOCK: Dorsaneo has seconded.
All in favor of, again, in subdivision (b)
saying, "A judge must recuse in the following
circumstances, unless waived pursuant to subdivision (c),"
raise your hand.
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All opposed? It passes by a vote of 30 to
0, so unanimous with some people abstaining, Sarah.
Okay. What's next, Judge McCoy?
HONORABLE ROBERT McCOY: Over in section
(e)(1) it says, "A judge's ruling may not be a basis for
the motion," and I think that's been the law for a long
time, but I would just point out that there is a Houston
14th court that has said, "An unfavorable disposition
towards a party arising from events occurring in judicial
proceedings may nonetheless support recusal if it is so
extreme as to display a clear inability to render fair
judgment."
So I was just pointing out that there is a
case that is an exception to the language in the new rule.
MR. ORSINGER: Can you give us a cite on
that?
HONORABLE ROBERT McCOY: It is Sommers with
an o, Sommers vs. Concepcion, 20 S.W. 3d at 44, Houston
14th, and it's 2000.
CHAIRMAN BABCOCK: Yeah, Justice Duncan.
HONORABLE SARAH DUNCAN: I don't see that
that's inconsistent --
PROFESSOR DORSANEO: Me, either.
HONORABLE SARAH DUNCAN: -- with this rule.
The basis for the recusal motion, it seems to me in that
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circumstance, would be bias or prejudice towards a party;
and the ruling, as the rule says, may be admissible as
evidence to support that ground.
CHAIRMAN BABCOCK: Yeah. I tend to agree
with that. Of course, Judge McCoy, it's not fair to you
since you haven't been here for these prior discussions,
but we had a lengthy discussion about this provision when
there was some controversy about including it, but I think
the sense was that, consistent with the holding in the
Sommers case, that there could be circumstances where the
rulings would be such that it's something that the court
should consider, and that's why we put it into the rule.
So I don't see inconsistency there. But maybe I'm --
maybe others do. Richard or Carl, do you have any thought
or response to that?
MR. HAMILTON: No. I agree with Judge
Duncan that if that condition exists, it probably comes
under section (1), (b)(1), that the judge's impartiality
might be reasonably questioned. So I don't see that
that's particularly a problem.
CHAIRMAN BABCOCK: Judge McCoy, do you still
have a problem?
HONORABLE ROBERT McCOY: No. I was just --
again, the point of this letter was to point out --
CHAIRMAN BABCOCK: Well, I know, and that's
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what we want to do.
HONORABLE ROBERT McCOY: -- items for
discussion. I don't have a problem with that. I agree
with you.
CHAIRMAN BABCOCK: Yeah, Judge Brown.
HONORABLE HARVEY BROWN: While we're on
(e)(1) can I raise an issue that's come up in my court
recently?
CHAIRMAN BABCOCK: Yes.
HONORABLE HARVEY BROWN: I had a motion
filed by a nonparty, a witness, and I wondered when it
occurred whether I had to rule on it or not, and I don't
see anything in here that addresses who can file a motion
to recuse, but that may be a good thing to have. At least
I wish I had it in my --
HONORABLE SCOTT BRISTER: A witness moved to
recuse you?
MR. TIPPS: What did you do?
HONORABLE HARVEY BROWN: I wondered what the
testimony was going to be. I don't know. And the parties
don't know what to do either.
CHAIRMAN BABCOCK: Yeah, Bill.
PROFESSOR DORSANEO: Generally speaking,
only parties or people who are allowed to intervene in
some formal or informal manner would have the ability to
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seek action from the court.
HONORABLE HARVEY BROWN: Well, we have
motions to quash by witnesses.
PROFESSOR DORSANEO: Well, those people are
kind of involuntarily brought into the fray by someone
else, and they are in effect cited in some manner.
CHAIRMAN BABCOCK: Well, this is a witness
that's moving. Yeah, Justice Duncan.
HONORABLE SARAH DUNCAN: It just doesn't
seem to me they would have enough of an interest to invoke
recusal since they shouldn't be interested really in how
the action comes out; whereas, on a motion to quash it is
their direct interest that gives them standing to file it.
PROFESSOR DORSANEO: Anymore than they could
move for summary judgment.
CHAIRMAN BABCOCK: Right.
HONORABLE HARVEY BROWN: Your reaction is
the same as mine, but I don't see anything in the rule.
HONORABLE SCOTT BRISTER: But, I mean, one
could imagine circumstances, two competitors subpoena a
third party in an antitrust claim and would like to get
Microsoft's trade secrets; and the judge, who hates
Microsoft, would like to get them out in public domain. I
mean, I can imagine circumstances where you wouldn't want
to prevent a nonparty from filing a recusal motion. I'd
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suggest we don't get into that.
CHAIRMAN BABCOCK: Richard.
MR. ORSINGER: I totally support what Scott
just said. I think that any time that the court is going
to exercise judicial authority over a person, it needs to
be impartial, and whether you're a witness who's been
subpoenaed or whether you're -- I don't care how you're
brought into it, but if the judge is exercising judicial
power of the state over you, I think you should have the
opportunity to come to court and claim relief, so this may
be specious. I'm not saying that it has to go through --
HON. F. SCOTT McCOWN: May not be.
MR. ORSINGER: -- our procedure, but I think
we shouldn't write it. I think we ought to leave it
there, and we ought to allow the courts to deal with it on
an ad hoc basis as it comes up.
CHAIRMAN BABCOCK: Judge Brown, how does
that make you feel?
HONORABLE HARVEY BROWN: Well, I think
Scott's point is a really good point, in fact, one I
hadn't thought of, but I wish I knew what I was supposed
to do.
MR. ORSINGER: Just deny it and keep moving
on the case, and if you don't get mandamused then it's
okay.
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HONORABLE HARVEY BROWN: That's what I did
the first time. I'm on my second motion now, and the
administrative regional judge has got a motion now from
this witness.
HON. PHIL HARDBERGER: After your case there
may be law.
CHAIRMAN BABCOCK: Yeah. You may get some
direction. Okay. Back to you, Judge McCoy. Where do we
go next on your letter?
HONORABLE ROBERT McCOY: All right. Section
(e)(2) talks about time to file, and I felt like that an
attorney who is going to file a recusal motion should have
to do so in some period of time after he learns or
discovers the reason for recusal and not wait around and
see how the judge's rulings go and then wait up until the
tenth day before trial to file his recusal motion. If he
thinks that he has a reason to file a recusal motion, he
should go ahead and file it and not wait around and kind
of see how the lay of the land goes.
CHAIRMAN BABCOCK: Yeah. We have struggled
with this issue.
HONORABLE ROBERT McCOY: Okay.
MR. ORSINGER: Can I explain?
CHAIRMAN BABCOCK: We need to -- I think the
reason we're taking so much time with this exercise is
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because this is a very tricky rule. We have done some
substantial things to recusal. It's extraordinarily
important, so I think it's worth the time to go through
it. So, Richard.
MR. ORSINGER: We've had some very, I think,
insightful debates on this very point, but I think the *
thing that convinced me to support the rule the way it is
is that in the hands of an unscrupulous lawyer the
requirement that you do it as soon as the attorney learns
of the grounds can cause the focus of the recusal to shift
from the grounds for disqualification or recusal to when
the lawyer knew or should have known.
And we had a description of an incident in
which a lawyer acquired some information that there was a
corrupt arrangement between the judge and the opposing
party, but it started out as a rumor, and he wasn't
willing to file on the basis of a rumor, so he tried to
get a little bit more evidence and then he got a little
corroboration of the rumor and then he got a little
documentation and then he got somebody to be willing to
sign an affidavit and then he got a deposition, and he got
some testimony under oath and then he filed a motion. And
so at what point does the attorney know?
And if you're going to say that the grounds
for recusal are waived if you don't move soon enough then
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the recusal is going to get refocused from whether the
judge should get out of the case to whether the lawyer
acted early enough and, of course, the lawyer doesn't want
to act too early because you can be sanctioned. So rather
than refocus it on the behavior of the complaining lawyer,
we were afraid that would be a greater evil than the
problem you're talking about, and it was debated hotly and
earnestly, I think, on all sides.
HONORABLE ROBERT McCOY: All right. Section
(e)(3) says, "Unless the parties agree that the case may
be reassigned in accordance with local rules." Well,
Judge Walker, being the administrative judge, was
concerned that this is opening up the possibility that
local rules could in some way affect what his duties and
responsibilities are as administrative judge.
CHAIRMAN BABCOCK: Richard or Carl, you-all
dealt with this problem.
MR. ORSINGER: Yeah.
CHAIRMAN BABCOCK: This is in response,
Judge McCoy, to a specific comment that we'received from
one of the administrative judges. I forget who.
MR. ORSINGER: It was Judge Hester, I think.
CHAIRMAN BABCOCK: Judge Hester.
MR. ORSINGER: And I think Carl ought to
talk about it, because I think it was his case, wasn't it?
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MR. HAMILTON: Yeah, but I don't think
that's the point.
HON. F. SCOTT McCOWN: No, that's not the
issue.
MR. ORSINGER: Oh, that's not the point?
HON. F. SCOTT McCOWN: The point of this --
Carl, if you don't mind -- is the Travis County/Bexar
County central docket. Travis County/Bexar County central
docket didn't want to lose the option of the informal
reassignment if the parties agreed, which is fast and
inexpensive, and that's why we put that in, and I don't
think that there is any local rule that could change the
authority of the presiding regional administrative judge.
That's statutory authority, and all local rules have to be
consistent with the statute and approved by the Supreme
Court, but so that was just built for those counties that
have a central docket.
MR. HAMILTON: Yeah. This is the first part
of the referral part, but I don't know that we necessarily
tinkered with that if the judge voluntarily recuses
himself and the parties agree, the new judge can be
reassigned in accordance with local rules so that it
doesn't even go to the regional judge. It's the last part
of (3) that Judge Hester wanted us to put in.
Once he gets it and assigns somebody, it
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can't be reassigned without his consent.
CHAIRMAN BABCOCK: Okay. Richard.
MR. ORSINGER: Judge McCoy, to address your
concern, I mean, we debated this over so many meetings
it's hard to summarize; but we were attempting to concern
ourselves with a situation where a party invoked the
recusal process and then the local judge subverted the
recusal process by -- the local presiding judge took the
case away from that judge and kept it; and what Judge
McCown just said is that in Bexar County and Travis County
we have random assignment on the morning of the hearing or
the morning of the trial.
HONORABLE ROBERT McCOY: Right.
MR. ORSINGER: And sometimes you'll get
assigned to someone you didn't expect to go to, and it
turns out this is their next door neighbor or, you know,
some bona fide reason why they shouldn't get the case; and
the lawyers will frequently say, "Hey, you know, we didn't
know we were going to get assigned down here. We agree it
would be uncomfortable for you to make this ruling. Just
send us back to the central docket and let us get
reassigned out."
HONORABLE ROBERT McCOY: Okay.
MR. ORSINGER: If both parties are
comfortable with that then there is really not much risk
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that the recusal process is being subverted, but if one
party wants the recusal process to go through its steps
and then a local judge were to take it and reassign it
then that would be a subversion. And so I think this is
kind of a compromise where if both sides agree we can use
local reassignment, but if one party wants to stand on
their rights in the recusal process then it has to go all
the way through the recusal process, right, Scott?
HON. F. SCOTT McCOWN: That's right, and it
also only applies when a judge voluntarily recuses
himself, so you have got several safeguards. The judge
you've moved to recuse has to say, "I'm out of here" and
then the parties have to agree to just get it locally
reassigned.
CHAIRMAN BABCOCK: Judge McCoy, does that
address your concern?
HONORABLE ROBERT McCOY: Yes.
CHAIRMAN BABCOCK: Okay.
HONORABLE ROBERT McCOY: All right. The
next item was also in (3), and again, this is pointing out
what one case said.
MR. EDWARDS: Could we go back?
CHAIRMAN BABCOCK: Bill Edwards.
MR. EDWARDS: Is there any impact on the
last sentence on (3) on what we have just been talking
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about? Because it says, "After a motion to recuse or
disqualify has been filed no judge may preside" and so
forth "until the motion has been decided by the judge
assigned by the presiding judge." And does that --
because the judge may voluntarily recuse himself on that
motion, I don't know whether there's a conflict there of
any kind.
CHAIRMAN BABCOCK: Do you see a conflict,
Judge McCown?
HON. F. SCOTT McCOWN: Yeah, I do. Let me
look at (e) (4) .
MR. EDWARDS: Because the thing we were
talking about foresees not even sending the recusal to the
presiding judge, I think.
CHAIRMAN BABCOCK: Uh-huh.
MR. EDWARDS: I mean, the last sentence
seems to me to say you have to send it to the presiding
judge for an assignment.
HON. F. SCOTT McCOWN: Well, I think that
what -- I do think you've identified a conflict in the way
the rule is drafted, and I think that the conflict can be
fixed, but I'm not sure that it doesn't create another
problem.
You can -- this last sentence is designed to
work where a judge doesn't voluntarily recuse; and the top
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sentence that we were just looking at, actually the second
sentence of the paragraph, is designed where a judge does
voluntarily recuse. So you could say, "Notwithstanding
any local rule or other law, after a motion to recuse or
disqualify has been filed, if the judge does not
voluntarily recuse, then no judge may preside, assign,
transfer, or hear any other matter in the case except
pursuant to paragraph (e)(4) before the motion has been
decided by the judge assigned by the presiding judge of
the administrative region," but -- and I'm sorry that
Judge Peeples isn't here today because I am not sure that
the solution I'm proposing -- while it makes the rule
consistent, I'm not sure it doesn't inadvertently change
what we were trying to get at. Because what Judge Peeples
was trying to get at here, if I recall, was a situation
where a judge -- you move to recuse a judge, he steps
aside, and the case goes to the judge's good buddy.
HONORABLE SCOTT BRISTER: Yeah. His problem
was you file the motion to recuse, then everything
thereafter is supposed to be done by the administrative
judge.
HON. F. SCOTT McCOWN: Right.
HONORABLE SCOTT BRISTER: Instead, the local
judge, the judge who has been recused, goes to his buddy
who's the local judge and says, you know, "Move it from my
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court to so-and-so's court" or some deal like that.
HON. F. SCOTT McCOWN: Well, right.
HONORABLE SCOTT BRISTER: That avoids the
process of --
HON. F. SCOTT McCOWN: Okay.
MR. EDWARDS: I don't think your suggestion
undoes what we did up in the second sentence with regard
to the problem that was just outlined.
MR. ORSINGER: Aren't we safe because it
would require both parties to agree to reassign it under a
local rule?
HON. F. SCOTT McCOWN: How about this?
Here's the fix. What I just suggested isn't the fix.
Here's the fix. You leave the sentence exactly as it is,
but you add -- at the end you say, comma, "Except by
agreement of the parties as provided above," and that
references back the agreement of the parties provided
above. That makes them consistent. Because, really, this
rule, this last sentence needs to operate whether they are
involuntarily or voluntarily recused, and so you would
just say "except by agreement of the parties as provided
above." So I would move that change.
CHAIRMAN BABCOCK: Okay. Bill, does that
fix it for you?
MR. EDWARDS: I think it does.
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CHAIRMAN BABCOCK: Huh?
MR. EDWARDS: Yeah.
CHAIRMAN BABCOCK: Buddy.
MR. LOW: (Nods head.)
MR. EDWARDS: It seems to to me.
CHAIRMAN BABCOCK: Moved. Bill Edwards
seconded it, I think.
MR. EDWARDS: Yes.
CHAIRMAN BABCOCK: Does anybody want to
further discuss this change? Anybody opposed to the
change?
Okay. By unanimous vote then we add -- and,
Scott, let's just be sure about this. On subparagraphs
(e) (3) ? Yeah, (e) (3) after the word "region" -- Judge
McCown, after the word "region," comma --
HON. F. SCOTT McCOWN: "Except by agreement
of the parties as provided above."
CHAIRMAN BABCOCK: Okay. All right. Then
that change will be made and passed unanimously.
Okay. Judge McCoy, back to you.
HONORABLE ROBERT McCOY: When a judge gets a
recusal motion, of course, he needs to either recuse
himself or refer to the administrative judge, and that's
what's referred to in (3). There's a Corpus Christi case
that says that before either of those occur he may hold a
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hearing to flesh out what information is being presented
such that he should recuse himself; and I, again, just
point out that there is some case law which is a little
different from what Item No. (3) says.
CHAIRMAN BABCOCK: Okay. This is the in re:
Rio Grande Valley Gas Company.
HONORABLE ROBERT McCOY: Right. And then if
you want to read Judge Walker's comment, you can. I
won't.
CHAIRMAN BABCOCK: "The Corpus Christi court
basically left the fox to determine the need for security
in the henhouse." Colorful.
Well, first of all, do we agree that the
trial judge does not have the authority to flesh out
whether or not he should -- he or she should recuse him or
herself in the first instance?
HON. F. SCOTT McCOWN: Which provision are
we looking at?
CHAIRMAN BABCOCK: This is (e)(3), referral.
MR. HAMILTON: There's no provision there,
though. The question is should we have a provision that
the judge who was sought to be recused can't have a
hearing to determine whether he should be recused.
HONORABLE ROBERT McCOY: Exactly. That's
what this case says he has the right to do, and the only
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case that I know of.
CHAIRMAN BABCOCK: And there's nothing in
this rule that prohibits that.
HONORABLE ROBERT McCOY: No.
CHAIRMAN BABCOCK: So the question is should
we by rule suggest to the Court that the Corpus Christi
decision in 1999 be overruled?
MR. ORSINGER: Let me ask this, Chip. The
very first sentence of (3) says, "The judge in the case in
which the motion is filed must promptly sign an order
ruling on the motion prior to taking any other action in
the case." How could you convene a hearing and conduct a
court of inquiry to see what the basis of it is? Isn't
that other action prior to signing an order ruling on the
motion?
CHAIRMAN BABCOCK: Well, that's not new
language, so apparently that's the language before the
Corpus Christi court.
MR. ORSINGER: Well, the language is
perfectly clear to me, so is the problem with the language
or is the problem with the court?
MR. SOULES: Right.
MR. ORSINGER: The Supreme Court exists to
cure errors when courts of appeals can't read the law
correctly.
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HON. F. SCOTT McCOWN: Well, hold on,
though. Whoa, whoa, whoa.
MR. SOULES: But they didn't.
CHAIRMAN BABCOCK: How many votes did you
get the last election?
HONORABLE JAN PATTERSON: They are
accountable because they are last.
HON. F. SCOTT McCOWN: But, I mean, I can
see this both ways, but I can sure see that if a trial
judge got a motion to recuse in the mail that the trial
judge might want to talk to the lawyers either to clarify
some facts that maybe they got wrong or to clarify some
things about the motion that the trial judge doesn't
understand and that as a result of that the parties might
either withdraw their motion or the trial judge might
voluntarily recuse. I can see that that would be a good
thing, and I'm not sure we would want a world where when
the trial judge got the motion, however little it said or
however unclearly it said it, that the trial judge had to
make an instantaneous decision to either recuse or to
refer it to the presiding judge.
On the other hand, I can see that if you
file a motion to recuse you might not -- you might want a
system where you didn't have to go down and talk to the
trial judge about it, that the only person you had to talk
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to about it was the recusal judge, and if there were any
clarification that needed to be sought, the recusal judge
could seek it. It kind of goes to your view of whether
the Bench and Bar are collegial or whether the Bench and
Bar are adversarial.
CHAIRMAN BABCOCK: Well, I had a case where
this came up. The recusal motion said that the judge had
been a -- the judge had formerly practiced law with a
material witness. It didn't identify who the material
witness was, and there are two ways of approaching it.
One is just to deny the motion on the basis that there is
not sufficient specificity, as required by the rule, and
therefore, the motion is defective and, therefore, it
should be denied.
The other way to handle that is to -- for
the opposing party to specially except or for the judge to
say, "Well, who is it that you think that I practiced law
with, and what's his relationship to this case?" And
depending on the answer to that question, the judge may
very well say, "Yeah, you're right. I need to get out of
this. I need to get out of this case."
HON. F. SCOTT McCOWN: But under Richard's
interpretation the judge couldn't ask that question.
CHAIRMAN BABCOCK: That's right.
MR. ORSINGER: You can't have a special
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exceptions hearing under this rule, unless the Corpus
court is right.
CHAIRMAN BABCOCK: Yeah. Okay. Stephen and
then Skip.
MR. TIPPS: I don't believe this sentence is
perfectly written, but it's still clear to me that the
Corpus Christi court is right and that what this sentence
is saying is that before the judge deals with anything
else in the case he has to dispose of the recusal motion;
and I think it's implied that if he's under an obligation
to sign an order ruling on the motion, that he can conduct
some kind of hearing or ask some sorts of questions that
will enable him to make a ruling.
I mean, and your situation is a good example
of how it has to be that way; otherwise, we would be
putting judges in a position in which they would be
potentially having to make blind rulings with regard to
motions that they don't understand.
CHAIRMAN BABCOCK: Yeah. Surely if they are
called to rule upon the motion they are entitled to have a
hearing.
MR. TIPPS: Sure. And I think that's true
with regard to any motion.
CHAIRMAN BABCOCK: So we're glad you're not
on the court, Richard.
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MR. ORSINGER: Well, that means your first
recusal hearing could well be in front of the judge you're
trying to recuse, and he'll say, "I want you to bring in
witnesses to back up this motion. We're going to have a
hearing next Thursday morning." Is this what we want?
We want to try our recusal hearings in the first instance
to the judge that we're attacking?
CHAIRMAN BABCOCK: Well, don't we give the
district judges in the first instance the opportunity to
recuse or not? And if we're doing that, why can't they
have the opportunity to know the basis of the motion?
MR. EDWARDS: Well, it seems to me that if
you make a motion for recusal that has any substance, the
judge is going to know about it.
CHAIRMAN BABCOCK: Right.
MR. EDWARDS: You say he practiced law with
somebody that's involved in the case. He knows with whom
he's practiced law. If he doesn't have any notion about
what the motion means, he just overrules it because it
doesn't tell him he's recused, and then you go from there,
but having been in -- you know, I think I filed one
recusal motion in my whole life and made it through
several courts, and it's a decision that you don't take
lightly, and I certainly would not have wanted to have
that hearing in front of the judge against whom I had
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filed it. It happened to be a personal friend and
neighbor of mine who actually appeared at two hearings,
filed his own motion for rehearing when he was
disqualified the first time.
It can get pretty sticky, and I know that as
a practitioner if I'm going to make that decision, I don't
want to have to do it in front of the judge whom I am not
attacking but suggesting should not be hearing my case.
You go to the people -- and I know in the disciplinary
area where they are going to do one after another they
don't give a hoot about what -- those kind of things, but
I don't think we can just change the whole system because
of some guy out there or some person, some lawyer, that's
violating all of the rules of our profession. I think the
grievance process takes care of that kind of person, has
to.
CHAIRMAN BABCOCK: Skip and then Buddy and
then Carl and Justice Duncan.
MR. WATSON: I think that the core of the
old rule and what we were trying to beef up in this rule
is just the core concept that if a motion to recuse is
filed, the judge cannot pick up a pen to do anything other
than to sign an order saying, "I'm recused," or to refer
it to someone else to sort out the special exceptions, to
hold the hearings, or to do everything else. That's
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bedrock. That judge shouldn't do another thing other than
sign that order, and that's the way it should be.
CHAIRMAN BABCOCK: What's your authority for
that, Skip?
MR. WATSON: Pardon me?
CHAIRMAN BABCOCK: What's your authority for
that? What is it on the law?
HON. F. SCOTT McCOWN: This sentence. His
authority is exactly what Richard said.
MR. WATSON: I mean, that's the way I read
it before we started tinkering with it, and I thought what
we were trying to do is seal up all of the little
mouseholes that got out from under that in this process,
that the person who is subject of the recusal shouldn't
have anything to do with the recusal process, period.
CHAIRMAN BABCOCK: All right. You're in a
jurisdiction like Bexar -- well, it wouldn't be Bexar
County. You're in a jurisdiction where they have an oral
docket. You have oral hearings. So you file your motion.
The computer spits out a hearing date for your motion.
You go down to court. The judge says, "What's this
about?" You stand up and you say, "Judge, we have got a
motion to recuse you." Okay. Does the judge say, "Okay.
I'll read the papers and see you guys later," or does the
judge have the authority to say, "Tell me about it"?
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MR. WATSON: No. The judge says, "I'll read
the papers and you'll receive my order." That's exactly
the way it should be.
CHAIRMAN BABCOCK: So in your view the judge
is precluded from saying, "Tell me about it."
MR. WATSON: Exactly. Now, that doesn't
CHAIRMAN BABCOCK: Others are nodding their
HONORABLE WILLIAM HARRIS: I think that's
MR. WATSON: That doesn't mean that with
judges like the judges in this room that two counsel may
go to the judge together and say, "We have got a problem.
Let's talk about it." I mean, that's the way we handle it
in West Texas, but there are also judges in which -- that
are not in this room -- in which if you had that hearing,
you're walking into a sweatbox, and that's not pleasant.
It's going to be in camera, and it's not going to be
recorded, and it's going to be an unpleasant prospect, and
that shouldn't happen.
CHAIRMAN BABCOCK: Judge Brown, we had three
other people, and we will get to you next. Buddy was
next.
MR. LOW: I totally agree with Skip and
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Bill, and the way the rule is written they must state in
detail, and it must be on personal knowledge. I mean, you
can't just throw something out in the air and say to the
judge, "Well, I need to develop that." And then you go
before the judge and say, "Well, Judge, he gave you
$10,000 as a campaign contribution, violation of the law."
He says, "Are you calling me a liar? I didn't get but
5,000." I mean, you can't do both of them.
CHAIRMAN BABCOCK: Okay. Carl.
MR. HAMILTON: Well, I'm not sure the rule
is clear. You made a statement while ago about the judge
denying the motion if it didn't have all the right stuff
in it.
CHAIRMAN BABCOCK: Right.
MR. HAMILTON: My view is that the trial
judge doesn't do that. Only the regional presiding judge
would do that once it goes to him, and when this says
"once the motion is filed must promptly sign an order
ruling on the motion"
CHAIRMAN BABCOCK: That's what it says.
MR. HAMILTON: Yeah, but I don't think he
can make a ruling that the motion is not in proper form
and therefore deny it. I think his only ruling can be
"It's either granted and I recuse myself" or "It's denied
and I refer it to the presiding judge."
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CHAIRMAN BABCOCK: All right. Right.
That's what happened, yeah.
MR. HAMILTON: But I'm not sure that that's
really clear when it says that he signs an order ruling on
the motion, unless we make it clear that that's all he can
do, is either grant it or deny it -- I mean, grant it --
either recuse himself or not recuse himself and just deny
it.
CHAIRMAN BABCOCK: Well, two sentences later
it says, "If the judge refuses to recuse or disqualify,
the judge must promptly refer the motion to the presiding
judge of the administrative region."
MR. HAMILTON: Yeah, but that doesn't answer
the question what if the motion isn't verified, for
example.
CHAIRMAN BABCOCK: Right.
MR. HAMILTON: Can he simply deny it and not
refer it to the presiding judge?
CHAIRMAN BABCOCK: I don't think so. I
think if he denies it for any reason he's got to refer it.
MR. ORSINGER: Chip, what about this special
exceptions you're talking about? I mean, it's too vague
to figure out really what it is, so the other side says,
"I'm going to specially except to that." Now, is the
trial judge the one that says, "I grant your special
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exceptions and order you to replead your motion"?
CHAIRMAN BABCOCK: I don't know.
MR. ORSINGER: I hope not.
MR. HAMILTON: That's what I'm saying. I
don't think that's clear.
CHAIRMAN BABCOCK: Yeah, Justice Hardberger.
HON. PHIL HARDBERGER: I can see the reasons
for a clarification hearing, for lack of a better word.
CHAIRMAN BABCOCK: Right.
HON. PHIL HARDBERGER: But I think it is
such a ripe opportunity for intimidation that the better
policy is that there cannot be such a hearing, and I would
be against any broadening of the rule to allow a
clarification or initial hearing to special exceptions,
whatever you want to call it. It is -- my experience
would be the same as Bill Edwards. I've only made one
recusal motion, and it's a very unpleasant experience, and
nobody is going to really want to do that unless there is
a good reason.
So I think we have to be careful about once
that recusal motion is being made of doing anything to
impose the person who has made the motion before that
judge.
CHAIRMAN BABCOCK: Okay. Judge Brown, then
Judge Harris, and then Luke and then Bill.
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HONORABLE HARVEY BROWN: Well, I do think
that rule is a little ambiguous because I read it the same
way that Steve Tipps does, different than Richard. So I
don't view a hearing as "other action," personally.
It seems to me that Skip has got a great
point for some of the grounds for recusal but not others,
and maybe this is too complicated, but obviously if you're
saying the judge is biased or is not -- is impartial -- I
mean is partial, you don't want to do that in front of the
judge. That's too adversarial for the judge, but if
you're saying the judge is related to somebody or a spouse
is related to a witness, that seems to me that's not very
adversarial and that as a judge it would be nice to know
that.
Getting back to the special exceptions
thing, I also have a sense that a judge should have a
right to hear it first and decide before some other judge
does. What if, to go back to your hypothetical, the judge
can't do anything? It goes to the presiding judge, who
says, "Who is the material witness?" They now say who the
material witness is. Does the presiding judge then rule,
or does the trial judge at least now get to rule, knowing
the facts first before he's essentially reversed on his
first recusal?
CHAIRMAN BABCOCK: In my hypothetical, the
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presiding judge referred it to another judge who said,
"Who is the witness?" They said, "What does he know?"
And he recused the judge based on that and without
remanding it back to the first judge for further
determination.
HONORABLE HARVEY BROWN: I just think it
would be nice for the trial judge to be able to do that
himself or herself.
CHAIRMAN BABCOCK: Judge Harris.
HONORABLE WILLIAM HARRIS: I can't cite any
specific cases, but the case law -- all the case law on
this, when you start talking about judges making orders
with a recusal pending, that is almost always found to be
improper. What my position on this is, when I receive a
motion to recuse me, I don't -- and this may be a matter
of semantics. I don't think that I grant or deny that
motion. I think that I either recuse myself or I decline
to do so and send it, but I don't think that my declining
to do so is an order, and I don't think that recusing
myself is granting the motion.
In other words, if I'm presented with
grounds where I feel like the grounds are proper to
recuse, I'm going to recuse myself by a letter. If I do
not feel like the motion and its attachments on its face
state grounds for recusal, I'm under an obligation to
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resist it, to forward it to the administrative judge, and
he goes on from there. I don't think that I can look at
it and say, "Well, I need to have -- take more time on
this. I need to hear evidence."
I think that, you know, the speciali
exception Richard is talking about I think is a concern.
That constitutes making orders, and this Corpus Christi
case is the only one I'm aware of that's ever come down to
that. When a judge gets a recusal and then does something
subsequently it's almost always improper.
CHAIRMAN BABCOCK: Luke.
MR. SOULES: I don't know which of the
options under, what, (d) (3) --
CHAIRMAN BABCOCK: (d)(3)?
MR. SOULES: -- we've really focused on in
rule -- whatever it is. I guess it's 134, 18a, on 18a,
but in the Option Two it's clear that it says, "If the
motion is procedurally proper and grounds have been
alleged, the presiding judge shall hear a motion or assign
a judge to hear it. If the motion is not procedurally
proper or does not allege grounds, the presiding judge of
the region shall dismiss the motion without a hearing."
So there we are saying all this procedural stuff takes
place in front of the presiding judge --
HON. F. SCOTT McCOWN: Right.
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MR. SOULES: -- if he rules even onlwhether
or not the motion is procedurally correct, and I think
Option Two -- this is earlier paper -- is what we wanted,
and that certainly makes it clear that the presiding judge
makes all the decisions, even the decision that the motion
itself is so sketchy as to give no notice to the trial
judge of what's even being alleged.
HON. F. SCOTT McCOWN: Chip, can I make a
motion on specific language?
CHAIRMAN BABCOCK: You can if Bill Dorsaneo
will yield.
PROFESSOR DORSANEO: Yeah, I will yield. I
think you will do the same thing I was going to do.
HON. F. SCOTT McCOWN: Okay. I agree with
Luke; and I would suggest, to incorporate everybody's
comments, "The judge in the case in which the motion is
filed must, without further proceedings, promptlyjrecuse
or refer the motion to the presiding judge of thei
iadministrative region before taking any other action in
the case." And then I would also suggest because:-- and
the judge from Fort Worth whose name I'm blocked
MR. ORSINGER: Judge Harris.
HON. F. SCOTT McCOWN: Judge HarrisJ Judge
Harris made a very good point. Down in the italicized
sentence where we say, "If the judge in the case in which
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the motion is filed does not promptly grant the motion," I
would suggest instead of saying "promptly grant the
motion," we say "promptly recuse or refer the motion" so
that it's parallel in both sentences, because from the
judge's perspective, I may not want to be granting your
motion and saying I agree with it, but I may be wanting to
recuse, and we give them a little room there.
HONORABLE HARVEY BROWN: That's true.
HON. F. SCOTT McCOWN: And so I would.offer
that amendment.
PROFESSOR DORSANEO: I will second that.
That's what I was going to do. Maybe not as well
CHAIRMAN BABCOCK: Bill seconded. Okay.
Let's get the language down again, Scott.
HON. F. SCOTT McCOWN: Okay. "The judge in
the case in which the motion is filed must, without
further proceedings," and I will accept Luke's amendment,
"recuse or" -- "promptly recuse or disqualify, or
"or refer the motion to the presiding judge of the
sign"
administrative region before" -- getting rid of that Latin
and changing to Anglo Saxon, "before taking any other
action in the case."
PROFESSOR DORSANEO: I would say we might
put that last part first.
HON. F. SCOTT McCOWN: "Before takirig any
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other action in the case"?
PROFESSOR DORSANEO: Yeah. Then
blah-blah-blah.
HON. F. SCOTT McCOWN: "The judge in the
case in which your motion is filed must, without further
proceedings, promptly recuse or disqualify or refer the
motion to the presiding judge of the administrative
region," and then down in that first italicized sentence I
would make it parallel by saying "recuse or disqualify or
refer the motion to the presiding judge of the
administrative region."
And I think, frankly, if you use the term
"without further proceedings" you give a good judge who --
he could call the lawyers on the phone and say, "what's
this about?" I mean, you know, but there can't be any
more proceedings.
CHAIRMAN BABCOCK: Right.
HON. F. SCOTT McCOWN: There couldn'llt be a
hearing.
CHAIRMAN BABCOCK: So the effect of this is
going to be to overrule the Corpus Christi case.
MR. WATSON: Right.
CHAIRMAN BABCOCK: Okay. Yeah, Buddy.
MR. LOW: What is the effect of that in the
provision that we have already talked about, "unless the
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parties agree that the case may be reassigned in
accordance with local rules"? Do we mean then that they
can't even do that?
HON. F. SCOTT McCOWN: Well, but for that
provision to happen the judge has to voluntarily recuse.
So the judge would say, "I'm out of here," and then the
parties would say, "We want it reassigned pursuant to
local rules." So this wouldn't prevent the reassignment
pursuant to local rules.
MR. LOW: Okay. As long as it's not
inconsistent.
CHAIRMAN BABCOCK: Mike Hatchell, do you
have your hand up, or are you just stretching?
MR. HATCHELL: Nope.
CHAIRMAN BABCOCK: Just stretching. Okay.
Any further comment on this suggestion that has been moved
and seconded?
If there's no further discussion, then all
in favor raise your hand.
Anybody opposed? I should have asked that
question first. By a vote of 31 to nothing that passes.
You're opposed?
JUSTICE HECHT: No, but may I suggest we add
a comment indicating that the rule does reject the --
whatever holding or whatever it is in the Rio Grande case?
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PROFESSOR DORSANEO: Second.
CHAIRMAN BABCOCK: Anybody opposed to that?
By unanimous vote --
MR. TIPPS: Can we use Judge Walker'^s
commentary as part of our comment?
CHAIRMAN BABCOCK: Probably not. Okay.
MR. SOULES: Clarification. Are these
changes being made to Option Two which specifically --
CHAIRMAN BABCOCK: No, I think you're a
draft or two behind, Luke.
MR. SOULES: It says "Packet, January 28,
29" -- that's several -- that's a year behind. Too much
stuff .
CHAIRMAN BABCOCK: I think we've got the
draft of November 28th, 2000.
HONORABLE JOHN CAYCE: I've got a question.
Are the changes that we just voted on, are they
reconcilable with this subsection (4) here, interim
proceedings?
HON. F. SCOTT McCOWN: Right.
HONORABLE JOHN CAYCE: Okay.
HON. F. SCOTT McCOWN: Because before taking
any other action in the case, once you do that, you can
then take other action in the case pursuant to the rule,
but --
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HONORABLE JOHN CAYCE: For good cause.
HON. F. SCOTT McCOWN: Well, or -- yeah.
For the various -- or the interim proceeding for various
purposes, but the presiding judge is going to be on notice
that this motion to recuse has been made, and if the
presiding judge wants to swoop in and stop you, the rule
allows for all of that. It moves the lawyers to another
court.
back to you.
CHAIRMAN BABCOCK: Okay. Judge McCoy, we're
HONORABLE ROBERT McCOY: All right. We were
on (3), so let me digress slightly. The last sentence of
(2) says, "Any motion filed after the tenth day prior to
the date the case is set for trial or other hearirig is
governed by subparagraph (e)(4)," but if you look at (2)
it talks about if you file a motion too late it is waived
unless certain circumstances are met. So is this an
untimely motion or a motion that has not been waived, or
does it really mean any motion, even one that has been
waived by filing it untimely?
CHAIRMAN BABCOCK: Carl.
MR. HAMILTON: I think we have a problem
with this, and I don't know how this occurred. I guess
with all of our tinkering; but it seems to me that the way
this now reads, if it's intended that if it's not filed
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within ten days it's completely waived then we don't even
need the last sentence, which is (e)(2), then we don't
need to have any interim proceedings, if it's completely
waived.
If it means it's only waived as to that
hearing or as to that trial, that may be what we're trying
to say, because that brings into (4), and (4)(b) on the
interim proceedings means you can go ahead if it's done --
if it violates the ten-day rule.
CHAIRMAN BABCOCK: Well, I thought ,-
Richard, help me out with this, but I thought that the
reason for that sentence was because there are litigants
out there -- and these are the bad litigants we're trying
to deal with -- who, notwithstanding the fact that it is
waived, it's a bad motion, are just trying to stop the
proceedings. And they feel that they do stop the
proceedings by filing a motion to recuse the day the case
is set to go to trial and that the purpose of this
sentence was to say, "No matter whether your motion is
good, bad, or otherwise, whether it's waived or not
waived, you're going to go into the interim proceedings
procedure if you do it within ten days, unless you're
excused under one of the four excuses that you get under
(2) (a) through (d)
Richard, isn't that why that sentence is
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there?
MR. ORSINGER: Yeah, but I mean, I-,- and
now that Judge McCoy has raised this I'm concerned that we
really don't mean that it's waived, we just mean that it
doesn't stop the trial proceeding.
MR. HAMILTON: That's all we mean.
MR. ORSINGER: But you still get to have
your after-hours hearing on whether it's legitimate or
not. I don't know. I'm really troubled now.
MR. HAMILTON: The only time it does stop
the trial proceedings would be if you meet exceptions
(2) (a) ,(b)(b), , or (d) and it's filed within the ten
days, then it would stop those proceedings.
MR. ORSINGER: Yeah, but if it's waived, I
mean, if it's truly waived, there's no point in having a
parallel proceeding --
MR. HAMILTON: Right.
MR. ORSINGER: -- because you will lose
because you've waived it.
MR. HAMILTON: That's right.
MR. ORSINGER: So we can't mean "waived"
really.
HONORABLE HARVEY BROWN: Well, what if we
don't know if it's waived because we don't know when they
first learned of something?
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have a determination about whether there's been waiver.
HONORABLE SARAH DUNCAN: Right.
HON. F. SCOTT McCOWN: Waiver is, Ilthink,
the correct term. I think you're confusing procedure with
substance.
CHAIRMAN BABCOCK: Not for the first time,
either.
HON. F. SCOTT McCOWN: Because you have the
parallel proceeding, but in the recusal proceeding the
ultimate decision may be that motion, you waived it
because it didn't fall within any of the exceptions, so
it's denied.
HONORABLE SARAH DUNCAN: Actually, I think
we may be confusing things by talking about motions being
waived as opposed to grounds being waived.
CHAIRMAN BABCOCK: Uh-huh.
HONORABLE SARAH DUNCAN: And I think we did
mean, if I remember the discussion correctly, that the
ground is waived unless you come within one of thlese
exceptions, if it's included in a motion that is filed
within the ten-day period.
HON. F. SCOTT McCOWN: That's a good point.
We could say, "A ground to recuse is waived if the motion
is filed later than the tenth day before the date the case
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is set for trial."
MR. ORSINGER: Okay.
CHAIRMAN BABCOCK: How is that?
MR. ORSINGER: That's a great improlement.
CHAIRMAN BABCOCK: What problem does that
solve?
MR. SOULES: Where does that go?
CHAIRMAN BABCOCK: It would be in the second
sentence of subparagraph (2).
HON. F. SCOTT McCOWN: Well, I don't think
it necessarily solves the problem. It just makesjclear, I
think, what -- it makes clear the difference in substance
and procedure.
CHAIRMAN BABCOCK: Okay.
HON. F. SCOTT McCOWN: That what's waived,
is your substantive ground for recusal if it's raised in a
motion filed later than the tenth day before the date the
case is set for trial, unless it falls within one;of the
exceptions. We're going to have a parallel proceeding if
it comes that late, but the outcome of the parallel
proceeding will be "Too late, you waived it."
CHAIRMAN BABCOCK: Right. Right. I think
that's right. So is everybody comfortable with striking
the word "motion" and putting the word "ground" in in the
second sentence of subparagraph (2)?
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MR. YELENOSKY: Is it waived permanently? I
mean, what if you're reset?
CHAIRMAN BABCOCK: What, Steve? I'm sorry.
I couldn't hear you.
MR. YELENOSKY: Well, is the ground,waived
permanently? What if you're reset? Can you urge it
further than ten days out of the new setting? II
MR. SOULES: Yes.
CHAIRMAN BABCOCK: Maybe.
MR. ORSINGER: I think the context of our
discussion has been that it can be raised -- if you blow
it for purposes of a preliminary hearing, you can still
raise it after the hearing.
MR. YELENOSKY: But does the language say
that?
MR. ORSINGER: No, I don't think it does.
MR. YELENOSKY: So we have that problem.
MR. ORSINGER: That was just my
understanding of what we believed.
CHAIRMAN BABCOCK: Well, let's take on
Sarah's -- you say that's not enough, though, to put it in
the second sentence.
HONORABLE SARAH DUNCAN: Well, it's
grammatical. To just change "motion" to "ground"
leave you with a grammatical sentence.
not
doesn't
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MR. ORSINGER: You say, "A ground for
recusal is waived if the motion to recuse is filed later
than the tenth day"? No?
HONORABLE SARAH DUNCAN: "If not made the
subject of a motion to recuse" by then.
MR. ORSINGER: You've got to have aPh.D. to
understand that sentence.
HONORABLE SARAH DUNCAN: Well, I didn't
write this sentence as it exists in its current form. It
is always more difficult to edit to make something correct
than it is to write it correctly to begin with, but that's
not --
HON. F. SCOTT McCOWN: You-all shouldn't
fuss when we have company.
MR. ORSINGER: She has a special advisor on
legal writing, too, so I lose this fight.
CHAIRMAN BABCOCK: Okay. So how should the
sentence read then, Sarah?
HONORABLE SARAH DUNCAN: Well, as I';
understand it, Brian Garner is going to rewrite all of
this stuff anyway.
CHAIRMAN BABCOCK: I know, but we need to
come up with --
PROFESSOR DORSANEO: I hope that was humor.
HON. F. SCOTT McCOWN: "A ground for recusal
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is waived if it's not raised in a motion for" -- "if the
motion to recuse is not" -- "A ground for recusal is
waived if the motion to recuse is"
HONORABLE SARAH DUNCAN: "If not asserted."
Do we care if it's in a motion as opposed to an objection
as opposed to a --
HONORABLE HARVEY BROWN: Has to be in a
motion.
HON. F. SCOTT McCOWN: No, no. It has to be
in a motion. "Is waived if the motion is filed later than
the tenth day before the date the case is set for trial."
"A ground for recusal is waived if the
motion is filed later than the tenth day" -- "the motion
to recuse is filed later than the tenth day before the
date the case is set for trial."
MR. YELENOSKY: "For purposes of that
motion"? Does that help?
HON. F. SCOTT McCOWN: Well, let's solve one
problem at a time.
MR. HAMILTON: Why wouldn't it be better to
say, "The ground to recuse is waived if not asserted in a
motion"?
MR. TIPPS: Uh-huh.
HON. F. SCOTT McCOWN: Okay. "Asserted in a
motion filed" -- well, you'd have to say "if asserted in a
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motion filed later than the tenth day prior to the date
the case is set for trial."
MR. ORSINGER: I don't like that because it
could be an amended motion. I think it would be better to
do it --
days.
HON. F. SCOTT McCOWN: The first way?!
PROFESSOR DORSANEO: Yeah, less than ten
HON. F. SCOTT McCOWN: "A ground for recusal
is waived if the motion to recuse is filed later than the
tenth day prior to the date the case is set for trial or
other hearing, except in the following instances."
CHAIRMAN BABCOCK: Sarah, is that
grammatically clean enough for you?
HONORABLE SARAH DUNCAN: I'm not making any
more comments.
CHAIRMAN BABCOCK: Nina.
HONORABLE SARAH DUNCAN: Other than to say
maybe it's good that we have got Brian Garner.
MS. CORTELL: Why isn't this in that
back-door sort of way raising the problem that we were
trying to avoid by not keying the filing to the time when
you knew about a problem, because then if you say,'you
know, in a subsequent hearing, "Well, you didn't raise it
ten days prior to the last hearing and you knew about it,
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so you waived it"?
CHAIRMAN BABCOCK: Luke.
MR. SOULES: We really are changing this
significantly by changing "motion" to "ground" because now
we're saying that if you ever file a motion late and it
doesn't fit in one of these exceptions, every ground in
that motion is waived. The grounds are waived. And I
think we ought to go back to the motion. You only waive
the motion. You don't waive the ground, and if the
opportunity comes up later when you can file a timely
motion that's not going to be waived, you can reassert the
ground.
HON. F. SCOTT McCOWN: Well, is that right,
Luke, because it seems to me that -- let's say you have
got a big summary judgment hearing, and you don't move
timely on a ground and it's waived, and the judge invests
him or herself in deciding that summary judgment, and it's
denied, and the case is set for trial. Are you suggestingI
that you could then move to recuse that judge for trial
after he's already ruled on the summary judgment? 'Because
that would be a change in the law.
PROFESSOR DORSANEO: I think there is:case
law that supports that interpretation as well.
MR. SOULES: Right.
HON. F. SCOTT McCOWN: On a ground that's
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not new?
MR. SOULES: It may be a ground, one of many
grounds, some of which are newer. And you talk about
those things when you go to a recusal hearing.
CHAIRMAN BABCOCK: Justice Duncan.
HONORABLE SARAH DUNCAN: Could Richard or
Carl explain -- historically I'm getting very confused.
Where does this come from? I thought we decided several
times that you could file the motion to recuse at any
time, and that we didn't want to be looking at when did
you discover or should you have discovered this ground?
CHAIRMAN BABCOCK: I think --
HONORABLE SARAH DUNCAN: I'm just confused
historically.
CHAIRMAN BABCOCK: Yeah, I think
historically what happened was we did reject, as Richard
said earlier today, the "know or should have known," kind
of language in other parts of the rule, but when we got
here we had a lengthy discussion about Bexar County and
Travis County when you have a judge that you don't even
know who he is until you go down to the courthouse that
day, and so we started trying to build in protections, and
so (c) was part of that effort to protect people from
stuff that just arises.
HONORABLE SARAH DUNCAN: This does just the
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opposite of protection. This creates waiver of grounds.
CHAIRMAN BABCOCK: I know.
HONORABLE SARAH DUNCAN: And if what we want
to do is protect, it seems to me we say, "A motion can be
filed at any time," period, and then the court will look
at the nature of the ground itself and whether --
CHAIRMAN BABCOCK: I'll tell you the example
that I recall from our discussions, and that was you're in
trial, and all of the sudden you learn that the trial
judge has got a loan at the bank where the president of
the bank is on trial, and you didn't know about that.
There was no way to know about it, but in the middle of
the trial you find out that the judge has got a financial
obligation to one of the parties in the litigation, and so
you then move to recuse. Well, you're not timely in any
way, shape, or form, but subsection (c) is going to' save
you.
you -- no.
time.
HONORABLE SARAH DUNCAN: Well, why wouldn't
MR. YELENOSKY: Because you didn't learn in
HONORABLE SARAH DUNCAN: No. Actually,
under subsection (c) we are now going to go litigate
whether you could have known the bank president's
relationship with --
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CHAIRMAN BABCOCK: Right.
HONORABLE SARAH DUNCAN: I thought that's
exactly what we decided we didn't want to do.
CHAIRMAN BABCOCK: Well, we don't want to do
that, but the debate was that -- but the lesser evil
there -- I mean, yeah, you do have to litigate that issue,
but the lesser evil there was giving somebody the
opportunity to recuse that judge when they were innocent
as opposed to never being able to do it.
HONORABLE SARAH DUNCAN: Well, what in the
rule, but for this subsection, the last -- I mean, as I
remember it, subsection (2) used to read, "A motion to
disqualify may be filed at any time," period. Move on to
the next section, and somewhere all this got added, and
it's actually only the clause "any of this" -- after that
first sentence is added that there's any waiver at all of
a ground because of the timeliness or untimeliness.
HON. F. SCOTT McCOWN: Well, no.
HONORABLE SARAH DUNCAN: This is the only
place that it comes from.
CHAIRMAN BABCOCK: Okay. Carl.
MR. HAMILTON: As I remember, we started out
with the concept that we didn't want people coming in at
the last minute filing motions to recuse. So we said,
okay, we are going to have a ten-day deadline. If it's
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not done within ten days, they're out. Then we said, "No,
that isn't going to work because they may have really good
grounds, and we ought not to do that." So then we said,
"Okay, if it comes within ten days we won't stop the
hearing. We will go ahead with the hearing, and we will
have this parallel proceeding."
HONORABLE SARAH DUNCAN: Right. Right.
MR. HAMILTON: So I really think what we
intended on this time to file is not that there is a
waiver, but it's just that a motion that is not timely
filed doesn't stop those hearings or trials except in
instances (a), (b), (c), or (d). If you meet those
exceptions then it does stop the hearing. But if you
don't meet those exceptions then you go into the interim
proceeding, so I don't think we really want to say
"waiver" there, Richard.
HONORABLE SARAH DUNCAN: Exactly.
HON. F. SCOTT McCOWN: Well, no, wait.
Well, wait, though. We've gone back and forth on this,
but at one point the trial judges said, "Hey, wait a
minute. You've got to have some limit. You don't want to
let a guy develop the grounds for a motion and sit on them
until really late in the game." And so this -- and it may
not work, but what this is an effort to do is to have our
cake and eat it, too.
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It says, "We won't look at when you knew or
should have known or anything like that, except within
that period of after ten days before trial." If you're
that close, then it's going to be waived unless you come
within one of these exceptions. So it was an effort to
split the baby, to try to get the advantages of both
policies. And it is, by the way, what we have in our
present rule.
HONORABLE HARVEY BROWN: Right.
HON. F. SCOTT McCOWN: And so it was an
effort to keep that kind of baby-splitting that's in the
present rule, and we did vote on that, and so now we're
rehashing --
CHAIRMAN BABCOCK: I'm looking for the vote.
HON. F. SCOTT McCOWN: We're rehashing that
policy.
MR. HAMILTON: If it's waived then we don't
need any interim proceedings.
HONORABLE SARAH DUNCAN: Right.
HON. F. SCOTT McCOWN: Well, yes, you do,
because you may have a fuss, you may have a fight about
the truth or validity of it. For example, you may have a
big fight about whether it was known ten days or not known
ten days, and so what we say is we're going to have this
debate about whether the motion should be granted or
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denied in front of the recusal judge, but we're not
stopping the trial if it's within this ten-day period.
MS. BARON: Right.
CHAIRMAN BABCOCK: Richard.
MR. ORSINGER: I concur in Scott's comments.
The debate at one point was whether you had a deadline to
file within so many days of when you knew or should have
known, which might be, you know, six months before'your
trial; and there's always been a tension between the point
of view that you should be able to raise a valid recusal
ground at any point versus you shouldn't be able to lay
behind the log, see whether the judge is ruling for you or
against you, but you have this ace in the hole, which is
this recusal ground that you're not telling anybody about
until you start losing.
And I was opposed to putting this in here
because I think it's a horrible thing to call the other
lawyer in the middle of a recusal hearing and subpoena his
legal assistant and his records and everything else and
have this huge fight over work product, attorney-client
privilege, and have them testifying about what they knew
and when they knew and when they should have known it. I
think that's horrible policy, but I agree that what was
happening is we were trying to split the baby by not being
so onerous about when you have a duty to file, but saying
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that if you wait until ten days before the hearing or
trial then the burden is going to be on you to come
forward and prove that you didn't know about it in time to
file it more than ten days in advance.
And it was a kind of a compromised position,
and I don't like it because I think it's still going to
result in putting the lawyer on trial, but I believe that
the vote was made as a kind of a compromise, like Scott
was saying.
HON. F.• SCOTT McCOWN: Yeah, well, but
nobody likes a compromise, so you don't vote on whether
you like the compromise or not. I mean, we all agreed
that that would be the policy we would go forward on.
MR. ORSINGER: Well, I don't know. I think
I still voted against it. So I never agreed on it. I
just lost.
But I think Sarah is right. I think that
this is inherently in tension with the other principle,
and this is a compromise of that principle, a pretty
serious one.
CHAIRMAN BABCOCK: Okay. Let's take our
morning break. Ten minutes.
(Recess from 10:38 a.m. to 10:55 a.m.)
CHAIRMAN BABCOCK: Before we dive back into
recusal, we have a great, great, development to report on.
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Now, that got everybody quiet. Joe Latting was given the
task of getting CLE credit for all these many hours we
spend on these issues, and, Joe, you want to report on the
progress?
MR. LATTING: That's a bit exuberant.
CHAIRMAN BABCOCK: In keeping with the tenor
of our committee, exuberant.
MR. LATTING: Okay. It is in the process,
and I have been talking to the general counsel of the Bar,
and we are right now talking about getting CLE credits for
these meetings and for the preparation time and --
HONORABLE SCOTT BRISTER: Wonderful.
MR. LATTING: We haven't gotten a
commitment, but we're talking about maybe some
retroactive.
(Applause.)
MR. LATTING: Actually, there's going to
be -- the bad news is that they want there to be a
negative effect on the ethics hours. We're still
negotiating.
Anyway, I hope by the next meeting that we
can have something to give you.
HONORABLE SARAH DUNCAN: Get it done by May
23rd.
MR. LATTING: Okay. Yeah. When's your
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birthday? Let me know.
Well, I'm threatening to deluge them with
letters if they don't hurry up and grant it, so...
CHAIRMAN BABCOCK: Okay. We have been
talking about -- yeah, Judge McCown.
HON. F. SCOTT McCOWN: I have a motion on
this paragraph (2).
CHAIRMAN BABCOCK: All right. Let's hear
it.
HON. F. SCOTT McCOWN: I think we should
leave it exactly the way it's typed and move on because --
MS. EADS: Second.
HON. F. SCOTT McCOWN: And let me point out
why. Because we fought this debate out, and we came up
with this compromise and because for those, say, like
Richard, who don't like the compromise, that fourth bullet
point, "for other good cause shown," would always give you
a place to hang your hat. If you had a motion that was
very persuasive, that shouldn't have been waived, you can
hang your hat on "for other good cause shown," and the
recusal judge could say, "I am not going to waive this
because this is just too serious and shouldn't be waived."
And I think instead of getting into "ground"
and "motion," we should just leave it "a motion to recuse"
and just leave it the way it is.
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CHAIRMAN BABCOCK: Okay. Bill.
PROFESSOR DORSANEO: By that you're meaning
to say that all of the grounds in the motion are waived.
MR. SOULES: No.
HON. F. SCOTT McCOWN: I'm meaning to say
the motion is waived and leave to the development of the
law what that is.
PROFESSOR DORSANEO: Oh, you're saying you
don't think you can win the vote, is what you're saying.
HON. F. SCOTT McCOWN: No. No. I'm really
not. I mean, on some occasion I might be saying that, but
on this occasion I'm really not.
CHAIRMAN BABCOCK: Sarah.
HONORABLE SARAH DUNCAN: I guess my question
is what does it mean to waive a motion?
MR. EDWARDS: It means that the grounds are
still good, and if you for some reason -- maybe you try
the case, get a new trial or reversed. You can file a
motion on the same grounds at a later time. That's what
it means to me.
CHAIRMAN BABCOCK: Carl.
MR. HAMILTON: If there's a ground for
recusal that's in existence and, therefore, it doesn't
come within these four exceptions, it's in existence but
you don't know about it. So you find out about it five
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days before trial and you file the motion, the way this is
worded, that's waived. You can never raise it.
HON. F. SCOTT McCOWN: No, it's not.
MR. SOULES: What about (c)?
HON. F. SCOTT McCOWN: Because it's bullet
No. (3). "The party filing the motion knew or should have
known before"
CHAIRMAN BABCOCK: Well, let's get back to
Scott's -
MR. HAMILTON: Okay. You're right, Scott.
CHAIRMAN BABCOCK: -- motion, which is that
this subparagraph (2) has been thoroughly discussed and
debated and --
MR. YELENOSKY: Second.
CHAIRMAN BABCOCK: -- I was going to, before
Scott even made a motion, by executive fiat say that Judge
McCoy and Judge Harris are here at our invitation, and we
need to be respectful of their time, so I would like to
get through their list of concerns; and if somebody wants
to go back through the record and suggest that we need to
revisit this, I am not against doing that. It's a very
hard rule, very complicated rule, but let's not do it
right now.
HON. F. SCOTT McCOWN: I will withdraw my
motion in favor of executive fiat.
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MR. ORSINGER: Chip, we want to be sure that
every vote is counted.
CHAIRMAN BABCOCK: Mr. Dangling --
HON. F. SCOTT McCOWN: But not more than
once.
CHAIRMAN BABCOCK: All right. So, Judge
McCoy, let's go back to you.
HONORABLE ROBERT McCOY: All right. My
original question was, the last sentence before (3) says
any motion filed is governed by subparagraph (4), and do
you mean any motion?
HON. F. SCOTT McCOWN: Yes.
HONORABLE ROBERT McCOY: Or do you mean any
untimely or any unwaived? You just mean any motion,
waived or not?
HON. F. SCOTT McCOWN: Right. Any motion.
MR. YELENOSKY: Any motion.
CHAIRMAN BABCOCK: Right. All right.
HONORABLE ROBERT McCOY: The next two or
three might put under the housekeeping label. (e)(4), my
copy here has a subpart (a) followed by another (a) and --
CHAIRMAN BABCOCK: I think we fixed that.
HONORABLE ROBERT McCOY: The second (a)
says, "When the motion to recuse or disqualify is filed
after the tenth day prior to the date the case is set for
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conventional trial." What is that?
HON. F. SCOTT McCOWN: That's a new term of
art developed by Professor Bill Dorsaneo, a noted expert
on Texas procedure.
PROFESSOR DORSANEO: No. I can't take
credit for that. That's really Robert W. Calvert's term
from Aldridge vs. Northeast Independent School District,
and it has a well-understood meaning as to include jury
trials and bench trials that are tried in the conventional
manner rather than --
HONORABLE ROBERT McCOY: Unconventional?
PROFESSOR DORSANEO: Rather than summary
judgment practice, which is also a trial practice.
HONORABLE JOHN CAYCE: In Fort Worth it
means any case not tried in Judge McCoy's court.
HON. F. SCOTT McCOWN: Can we add a comment
to the rules that incorporates what Bill just said and
that cites the case?
CHAIRMAN BABCOCK: Yeah. We have it
footnoted, if you see in the November 28th draft, but I
think a comment would be helpful, because that does strike
somebody who doesn't study these things.
PROFESSOR DORSANEO: And it may well be that
conventional trials really are summary judgments, and
that -- I'm being facetious now, but --
\
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HONORABLE SARAH DUNCAN: Don't be.
CHAIRMAN BABCOCK: Don't be facetious on the
record. Bill, can we commission you to do a comment?
PROFESSOR DORSANEO: Yes, you may.
CHAIRMAN BABCOCK: All right. Judge McCoy,
what's next?
HONORABLE ROBERT McCOY: All right. In
(e)(7), again we're under housekeeping. "The presiding
judge must promptly give notice," I think that's probably
"The presiding judge shall refer the matter to the clerk
of the court, who must promptly give notice." I may be a
little picky there.
And then also in (e)(7) it talks about that
the judge must rule within three days, and I'm assuming
that that's either three business days or three days
excluding weekends and holidays, unless you really meant
that you hear it on Friday and, by golly, you need to have
that ruling on Monday.
Or what if Monday is a holiday? Do you have
to have it on Monday, a holiday?
CHAIRMAN BABCOCK: If I recall our
discussion on that, we were relying on the general time
rules contained in the rules, so it would exclude weekends
and holidays. Judge Harris.
HONORABLE WILLIAM HARRIS: Well, that has
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come up in some other contexts because there are certain
three-day periods where if you're relying on Rule 4 you
have a different result than if you're relying on Code
Construction Act in the Civil Practice and Remedies Code.
Specifically, the appeal of an associate judge has been
construed to be under the Code Construction Act rather
than under Rule 4, and three days under the Code
Construction Act is three days unless it says "excluding."
So that might be something you want to consider.
HON. F. SCOTT McCOWN: Well, but the
associate judge appeal is governed by statute, which would
be the Code Construction Act.
HONORABLE WILLIAM HARRIS: Exactly.
HON. F. SCOTT McCOWN: And this is a rule,
so it would be governed by Rule 4.
HONORABLE ROBERT McCOY: All right.
CHAIRMAN BABCOCK: Go ahead, Judge McCoy.
HONORABLE ROBERT McCOY: In (e)(8), the last
sentence starts out, "If an associate judge or a statutory
master," I believe it should include the statutory
magistrate, which I believe in Tarrant County we have in
criminal courts.
CHAIRMAN BABCOCK: These rules probably
would not be applicable to criminal cases, would they?
MR. ORSINGER: No. They are covered by the
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Code of Criminal Procedure.
HONORABLE ROBERT McCOY: All right.
CHAIRMAN BABCOCK: But didn't we talk about
the statutory master versus statutory magistrate?
MR. ORSINGER: I don't know. We talked
about associate judges versus statutory master because --
HONORABLE WILLIAM HARRIS: What about a
referee? Our juvenile courts have referees.
MR. ORSINGER: No, they are covered by the
Rules of Civil Procedure.
HONORABLE WILLIAM HARRIS: It's a civil
case. A juvenile case is a civil matter.
MR. ORSINGER: Do we need to mention
something about juveniles?
MR. SOULES: I'm sorry. I'm a little lost
where you are, Judge. Where is it?
HONORABLE WILLIAM HARRIS: It doesn't say it
in there, but I was just thinking outloud that if you are
going to cover all the different types of judges, I don't
know if they're elsewhere, but our masters in our juvenile
courts are called referees.
CHAIRMAN BABCOCK: So we're on (e)(8), Luke,
and it's the last sentence that says, "If an associate
judge or a statutory master is recused or disqualified,
the district court to whom the case is assigned must hear
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the case or appoint a replacement," and the issue on the
table is whether or not we need to expand that category of
people to include referees or masters.
HON. F. SCOTT McCOWN: Can I just
recommend --
CHAIRMAN BABCOCK: Yeah, Scott.
HON. F. SCOTT McCOWN: -- that we check the
Family Code to see if you have an absolute right to object
to a referee? Because if you have an absolute right to
object to a referee, there would never be any need to
recuse. If you don't have an absolute right to object to
a referee then we would want to add "referee," and just
let that turn on whatever we find out.
CHAIRMAN BABCOCK: How does everybody feel
about that? Richard, is that doable?
MR. ORSINGER: Sure. Absolutely.
CHAIRMAN BABCOCK: By you?
MR. ORSINGER: It's in the Family Code. I
don't practice juvenile law, but we could sure find it
out.
CHAIRMAN BABCOCK: But you're kind of a
family guy.
MR. ORSINGER: That's right. But Judge
Harris is a family law judge. He probably knows.
JUSTICE HECHT: Do -- I just don't know the
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answer to this. Do county courts have associate judges or
masters or referees in jurisdictions where --
MR. SOULES: Yes.
JUSTICE HECHT: -- their jurisdiction is the
same as the district courts? El Paso, Corpus Christi.
HONORABLE TOM LAWRENCE: I think they
appoint hearing officers for condemnations.
MR. SOULES: We ought to take the word
"district" out. Courts look at cases --
MR. YELENOSKY: Well, is there a generic
term we could use for a description?
HON. F. SCOTT McCOWN: Yeah. Let's just say
"the court."
MR. SOULES: That's a good point.
CHAIRMAN BABCOCK: That would solve that
problem, wouldn't it? Everybody okay with taking
"district" out of (e)(8)?
HON. F. SCOTT McCOWN: Yeah.
MR. YELENOSKY: No, I was referring to the
term for master, etc. Is there a generic term there that
would encompass all the litany that we might get wrong or
might be under-inclusive with future changes?
HONORABLE SARAH DUNCAN: How about
"judge equivalent"?
MR. YELENOSKY: "Judge equivalent."
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"Pseudo."
MR. EDWARDS: Who is it that appoints all
these people? Who is it that appoints them, and can we do
this in generic terms of people who make decisions
pursuant to appointment by whomever?
HON. F. SCOTT McCOWN: I think we have it
fixed if we adopt Luke's suggestion of just taking
"district" out because the only things there are are
associate judges, masters, and referees, if a referee --
if you don't have an absolute right to object to referee,
we can put that in. Commissioners, anything else, the
statute already has a procedure for qualifying and
disqualifying them.
CHAIRMAN BABCOCK: What's the difference
between a statutory master and just a regular old master?
HON. F. SCOTT McCOWN: Well, the difference
is that if you appoint a discovery master under
Rule 171 --
CHAIRMAN BABCOCK: Right.
HON. F. SCOTT McCOWN: -- that's different
than a 4(d) master appointed pursuant to a statute that
hears a large volume of cases, and there's already a way
under 171 to object to the appointment of a particular
master. What we're trying to cover here is regular
judicial officers.
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MR. ORSINGER: I might point out also that
the regular judicial officers, these associate judges and
masters, they have permanent jobs. They are hired by the
county or the district or the state; whereas, a Rule 171
master is appointed by a judge to act in a particular
case.
HON. F. SCOTT McCOWN: Right.
MR. ORSINGER: And then when the case is
gone they're gone also.
CHAIRMAN BABCOCK: So where does that leave
us? Are we just going to check the Family Code and see
whether that ought to be included, and otherwise we're not
going to worry about it? Okay. Richard, can you do that?
MR. ORSINGER: Yes, I will do that.
CHAIRMAN BABCOCK: All right. Judge McCoy,
next.
HONORABLE ROBERT McCOY: Is 18 -- the
present 18b(6), "if a judge does not discover that he is
recused," and so forth and so on, "he is not required," is
that addressed in the revised rule?
CHAIRMAN BABCOCK: I believe it's supposed
to be.
MR. ORSINGER: It's supposed to be.
HONORABLE ROBERT McCOY: And the reason I
bring it up is because there's a mistake in there where it
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refers to 2(f) (iii) , should be 2 (f) (ii) .
MR. ORSINGER: Look at subdivision (d).
Subdivision (d) is I think our current rule effort to try
to address that.
HONORABLE ROBERT McCOY: Okay.
MR. ORSINGER: But, no, I mean, let's verify
that.
HONORABLE ROBERT McCOY: I see.
MR. ORSINGER: Because we had a
cross-reference problem in an earlier draft of this rule,
but I think (d)(7) has to do with financial interest of a
relative of the judge, and that is not a financial
interest of the judge that can be cured by failure to
realize it; but of a relative of a judge, that is curable
under these conditions, right, if they divest?
HON. F. SCOTT McCOWN: So what was the
question, Judge McCoy?
HONORABLE ROBERT McCOY: I think I was -- I
was assuring myself that 18b(6) is addressed in the
revisions, and it is in section (d).
CHAIRMAN BABCOCK: Okay. What's next?
HONORABLE ROBERT McCOY: My last
-- I guess last comment is that the purpose of what we'll
call Senator Harris' bill I believe was to limit the
number of recusals in a case to three, not against the
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judge; and that is the kind of teeth that Judge Walker
feels and I feel is necessary to stop the use of the
recusal rule for purposes for which it is not designed.
So I just want to end with that comment.
CHAIRMAN BABCOCK: Okay. This is -- and
this is a really important issue, and I think that there
are some circumstances that Judges McCoy and Harris and
maybe now Judge Brown have faced that I don't think we
considered or we thought about when we were coming up with
this subsection (11) (b) .
As I explained to Judge McCoy and Judge
Harris before we started this morning, our concern with
the statute is that it has the sort of -- if it's
interpreted to be just three motions, you get three
motions and if you lose the third then you get sanctioned,
it is particularly a problem in counties like Bexar and
Travis that have a rotating docket where you could win two
motions, have a close motion on the third one but lose it,
and then all of the sudden get sanctioned.
And the concern of our committee
collectively was that that's not fair and surely that's
not what we're trying to get at; and so that's why the
language is drafted in this proposed rule as it is; but
there's another side of the coin, and I wasn't aware until
Frank Gilstrap and I went to visit with Senator Harris
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that the statute is really trying to get at a fairly
discrete but nevertheless serious problem; and, Judge
Harris and McCoy, maybe you could tell us your experiences
and what the problem is and then we'll see how we can fix
it.
HONORABLE WILLIAM HARRIS: Well, first, as
we discussed briefly this morning, I think that the
Senator's obvious intent under 30.016, Civil Practice and
Remedies, was to get at these litigants -- and we've
touched on them earlier today -- who use recusal motions
in an offensive manner with complete disregard for any
kind of sanctions or anything else. I think you made a
good point this morning, Chip, that with the rotating
dockets that they have in Austin and San Antonio perhaps
the Senator could look at changing the wording on this to
where after the denial of two previous motions -- in other
words, if you keep filing recusals and you keep
prevailing, it doesn't seem to me that, you know, that
would be proper.
If you recuse -- file a recusal, you have a
hearing, and you win the recusal hearing, that doesn't
seem like it would -- it would go in the spirit of recusal
and disqualifications, but I think that's a problem that
would have to be addressed by the Legislature; but
perhaps, you know, someone could write a letter to the
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Senator or I could visit with him about it.
CHAIRMAN BABCOCK: Well, I think what --
there is a provision that allows the Court -- and I am not
sure of the mechanics of how it works, and maybe Justice
Hecht is -- that allows the Court by rule to overcome a
statute on a procedure such as this; and I think the
intent of everybody, including Senator Harris, was to try
to bring all these different things that we're concerned
about, some of which had nothing to do with the problem
that you're talking about, into one rule and avoid the
confusion that is potentially existing between a rule that
says one thing and then a statute that says another.
So there's an attempt to harmonize things,
so I think what we're trying to do here is address the
problem that you're talking about in a way that everybody
thinks is appropriate so we can recommend it to the Court.
Yeah, Judge McCoy.
HONORABLE ROBERT McCOY: I think that the
point of this statute was not to sanction lawyers and was
not to keep lawyers from filing recusals, but was to get
the case over with. After you file three motions to
recuse, the fourth one and all of the rest of them are
heard on appeal and do not stop the case from going
forward, and that's what's happening in disciplinary
cases.
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If you're about to lose your law license,
you really don't care if you have to pay some attorneys
fees. You want to delay having this case heard for as
long as you can, and a way to do that is to recuse or try
to recuse every judge that's assigned to hear the case on
the merits or to hear the recusal of the judge to hear the
recusal of the judge on the merits and so forth. And so
the point of this was to stop that so that these cases can
be heard; and if there is a problem, there is a reason the
judge should have been recused, it's heard on appeal; but
we go ahead and get the case heard and behind us.
CHAIRMAN BABCOCK: Right.
HON. F. SCOTT McCOWN: What are you
suggesting? How would you do it?
CHAIRMAN BABCOCK: Scott, hang on, before we
get to that. I want to see if what we have done or what
we are proposing here solves that problem or not; and I'm
not sure what the answer is; but we've got this concept,
which I think is a very interesting concept of the interim
proceedings; and I'm afraid that even though the interim
proceedings work in a lot of situations, they may not work
in the problem you guys face. Judge Harris.
HONORABLE WILLIAM HARRIS: And I don't read
30.016 that way. I agree with Judge McCoy that all it
does is says that on your third or subsequent motion you
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don't get to stop the train. You keep on going. The
motion is heard, and I don't think it's heard on appeal.
I think it's heard by the presiding judge or the judge
that's assigned. The only difference is none of your
rights in a recusal are prejudiced, and none of them are
changed in any way except that under this tertiary motion
law the trial continues.
And the tertiary recusal statute says
that -- let's just suppose that you've recused three
judges and I'm your fourth and you file a motion to recuse
me and I say, "This is a tertiary motion. I'm going to
decline to recuse myself. I'm going to forward it to the
administrative judge, and we are going to continue with
this trial." Well, obviously the administrative judge is
going to want to resolve this as quickly as possible. The
trial keeps going. I can still sign orders. I can still
set hearings. I can still receive evidence.
Your rights for recusal are not prejudiced
because when you go to Judge Walker and present your
evidence and he says, "You know, you're absolutely right.
Judge Harris should be recused in this case," at that
point under the terms of 30.016 all of the orders I've
made during this what you guys refer to as an interim
period are vacated, but the only difference is that your
draftsmanship here I think is a little bit better because
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your draftsmanship says that these interim proceedings,
they can either vacate the orders made by the recused
judge or they can -- the new judge can affirm or I guess,
you know, restate those orders.
CHAIRMAN BABCOCK: Okay. There are two
things that are working in 30.016. 30.016. One is what
you just described. The other thing is sanctions. Let's
take the first issue first, and that is we don't want the
abusive litigant to be able to stop the trial.
HONORABLE WILLIAM HARRIS: And that's the
whole point. We have a -- there are two or three cases
I'm aware of. I'm intimately familiar with one of them,
as is Judge McCoy, and it's a case where literally there
are -- I think Judge McCoy was the fifth or sixth and I
was the sixth or seventh judge on a disciplinary matter,
and the pattern is always the same. A judge is assigned.
A motion to recuse that judge is filed. It states little
or no grounds.
The judge always does the correct thing,
declines to recuse himself, forwards the motion to the
administrative judge, at which time the administrative
judge appoints a judge to hear the recusal, at which time
the litigant recuses the judge appointed to hear the
recusal, at which time the administrative judge goes to,
in my case, Mr. Justice Phillips, at which time the
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litigant recuses Mr. Justice Phillips, and it's just sort
of an on and on thing.
And if you allow this, if you don't have
something to keep the ball rolling, you -- like Judge
McCoy said before, you give an unscrupulous litigant the
ability to absolutely stop a civil proceeding; and if
there's nothing -- if there's no way to go forward with
it, it's a real strange little loophole that a couple of
people, particularly in the disciplinary realm, have come
across, and they have been using it to great advantage.
There is one that I'm aware of that the case has been
pending for about three and a half years.
CHAIRMAN BABCOCK: Yeah. Richard, hang on
for just one second. There are two concepts at work here.
Our interim proceeding rule as drafted now is tied to
timing. In other words, if it doesn't make the ten-day
cutoff, then our interim proceeding procedure kicks in.
This statute and the situation you describe is not
necessarily time-sensitive. What it is is just
multiplicity of motions.
HONORABLE WILLIAM HARRIS: Exactly.
CHAIRMAN BABCOCK: So it seems to me to
solve the problem you-all describe, our remedy is fine.
It's consistent with 30.016. So we've got to -- if we're
going to harmonize these two provisions we've got to come
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up with language that allows interim proceedings when
there have been multiple motions under the circumstances
that you describe without penalizing legitimate litigants
who are in the Bexar County or the Travis County system
who may have multiple motions, but that's because they
have multiple judges all the time. Richard.
MR. ORSINGER: We have the interim
proceedings in a multiple motion case, and it is ground
one under paragraph (4) which cross-refers to (e)(11)(b),
so the condition for the interim proceeding based on
multiple motions turns on what's on (e)(11)(b).
It's when someone is sanctioned under
(e)(11)(b) and they file a subsequent motion, then the
interim proceedings continue. We are coupling the interim
proceedings and the multiple motion case with the
imposition of sanctions. We don't have to do that.
Theoretically, the way this rule might work
is that by the time you have denied three motions and the
fourth one is denied -- or in denying the third or
subsequent motion, so when the third one is denied they
are required to grant sanctions. The interim proceeding
will only overcome the fourth motion. So in a sense it
takes four motions before the interim proceeding goes
rather than three. But that would probably unfairly
penalize someone in Austin or San Antonio who had three
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legitimate motions against three different judges that
were all assigned.
Maybe we should uncouple the interim
proceeding from parallel motions from the imposition of
sanctions and just say by the time you've had three
recusals, granted or denied, the fourth one, you're going
to have to argue on appeal and not through our recusal
process.
CHAIRMAN BABCOCK: By "argue on appeal," do
you mean interim proceedings?
MR. ORSINGER: I don't. I think what
they're talking about is you try the case on the merits,
and your only remedy is to go to the court of appeals and
not to --
HONORABLE WILLIAM HARRIS: No.
MR. ORSINGER: -- go to the presiding
administrative judge.
HONORABLE WILLIAM HARRIS: I disagree.
MR. ORSINGER: What are you saying?
HONORABLE WILLIAM HARRIS: I think that what
30.016 says is that your hearing -- you're going to
continue the trial, the trial that forms the basis of the
recusal, but you're not going to be precluded from
pursuing recusal while this case is in trial.
HONORABLE ROBERT McCOY: I respectfully
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disagree with my brother here. I think what it says, it's
just an appellate point. That last recusal which was
denied is just an appellate point that you have. I mean,
30.016 says, "The denial of this recusal shall be heard on
appeal," or whatever. It's just another appellate point.
You aren't denied the right to file it. It's just that
you don't get to stop the train by having it heard now.
That's a point that you could be heard on appeal, and if
it's reversed, you redo the trial on the merits, because
that judge should not have heard the case.
MR. SOULES: Judge McCoy, my question to
you, if it's only -- if it's only something that can be
decided on appeal, what record does the appellate court
look at if there hasn't been a trial court proceeding to
develop the evidence or to develop the merits of the
motion to recuse.
HONORABLE ROBERT McCOY: That's why the
motion has to be specific, setting out all grounds.
MR. SOULES: But it may be false.
MR. ORSINGER: You need to have a fact
hearing.
HONORABLE WILLIAM HARRIS: That's why I
interpret section (d) where it says "the denial of a
tertiary recusal motion," to me that necessarily says that
the presiding judge has to hear the motion while the case
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is still before the judge whose recusal is sought because
there can't be a denial of the tertiary motion in my
opinion without a hearing before the presiding judge.
CHAIRMAN BABCOCK: Scott.
HON. F. SCOTT McCOWN: I have a proposal.
If you look at (11)(b), we really don't need (11)(b) for
sanctions because (11)(a) gives the judge all the sanction
authority the judge needs. What we need in (11)(b) is, --
is to solve the problem raised by Judge McCoy, Judge
Harris, or, excuse me, Senator Harris originally on the
tertiary motion, which applies, as they point out, not to
a particular judge but in a case and applies whether it's
granted or whether it's denied.
And so what I propose is that we change or
delete (b) entirely and substitute the following language:
"When a party files a third motion to recuse, the judge
hearing the recusal motion may order, when appropriate,
that the proceeding shall continue unabated while the
pending recusal motion and any subsequent recusal motions
are considered."
So let me explain how that would work and go
over it again. We're just going to assume that the law of
averages doesn't visit on one case three really good
recusals, and when you get -- when you file that third
recusal motion, regardless of whether your other two were
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granted or denied, the judge who's hearing that third
recusal motion can look at -- and this would vest some
discretion in the recusal judge -- can look at the nature
of the case, can look at the nature of the motions that
have been filed and the motion in front of him, and the
judge can say, regardless of whether he grants or denies
that motion, that this case is going to go forward
unabated while this motion and any subsequent recusal
motions in the case are litigated, and that creates then
the record for appeal that Luke pointed out we have to
have, but just says as a matter of discretion the recusal
judge can say, "We ain't stopping anymore. This is your
third one. We're not stopping anymore."
HONORABLE JAN PATTERSON: And where are you
recommending that be placed?
HON. F. SCOTT McCOWN: Well, we could place
it
MR. ORSINGER: It needs to be in (4), Scott.
It has nothing to do with sanctions.
MR. SOULES: Why don't we take that first
clause, the clause, "Denial of three or more motions filed
in the case against a judge on this rule by the same
party" and put it under "4," under "interim proceedings"
and make it a new way that you go and do that.
CHAIRMAN BABCOCK: Hang on. Judge Harris
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had a point on this.
HONORABLE WILLIAM HARRIS: Am I to
understand Judge McCown to say that if the recusal is
filed, whether it's the 3rd or the 18th or whatever, that
it's still -- the presiding judge has to make that
decision that the case can go on?
MR. SOULES: No.
MR. ORSINGER: Yes.
HON. F. SCOTT McCOWN: Well, it would be the
recusal judge.
MR. ORSINGER: Yes, that's what he's saying.
HONORABLE WILLIAM HARRIS: Because if we do
that, your Honor, what happens is this: The litigant
comes to court on the day of trial, and he's been turned
down on his -- he's had a hearing on his 15th motion to
recuse, and on the day of trial he appears at the trial
with the jury in the courtroom with his 16th motion to
recuse, and at that point he stops the trial.
HON. F. SCOTT McCOWN: Not under my rule.
HONORABLE WILLIAM HARRIS: Okay.
MR. ORSINGER: No. It would stop it long
enough to get the recusal judge in.
HON. F. SCOTT McCOWN: No. No, it wouldn't.
MR. SOULES: If you move --
HON. F. SCOTT McCOWN: Because it would be
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under our interim proceedings under (4).
MR. SOULES : I f you just move that (11) (b )
to interim proceedings, (4), and you only use the first
words of it, "Upon denial of three motions filed in a
case against a judge or under this rule by the same
party," then the interim proceeding rule would take --
would allow the court to proceed if there had been three
motions denied before.
HON. F. SCOTT McCOWN: Okay. But, no. See,
I'm saying something different, Luke.
MR. SOULES: Period.
HON. F. SCOTT McCOWN: I'm saying something
different.
MR. SOULES: I know you are.
HON. F. SCOTT McCOWN: Okay.
MR. ORSINGER: Judge Harris is saying even
if they were granted. I mean, aren't you saying even if
they were granted?
MR. SOULES: No. No.
HON. F. SCOTT McCOWN: Well, wait. The
first thing you have to get by is it's not against one
judge. It's in the case, period, and then it's whether
they are good or bad. There's two decisions to make
there, and what I'm saying is I can understand people not
wanting to penalize somebody for a good motion. So I
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would say give the recusal judge discretion to look over
those earlier motions and make a decision, given the
nature of the case, whether it needs to go forward
regardless.
MR. SOULES: But under (4) the trial judge
goes forward. He doesn't have to go back to the presiding
judge, and that I think is Judge Harris' issue, that if he
wants to go forward with the case, he doesn't want to have
to interrupt it at all, if he's wrong about the -- you're
probably going to listen to what the fellow has to say
about recusal, and you probably are going to -- at least
you're going to read that motion. if you think you're
going to be recused, why waste the time of having a trial?
HONORABLE WILLIAM HARRIS: Exactly, and --
MR. SOULES: But if it's the 16th motion or
it's the 4th motion, three have been denied, you think
it's groundless, and you go forward, or whatever you think
you can go forward.
HONORABLE WILLIAM HARRIS: Whether I think
it's groundless or not.
MR. SOULES: You're probably not going to go
forward if you think it's a good motion, and (4) is the
trial judge himself going forward without worrying about
going to the presiding judge. He sends the papers to the
presiding judge for a parallel proceeding.
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HONORABLE WILLIAM HARRIS: Exactly.
MR. SOULES: But the trial judge conducts
the trial, and what I'm proposing is that we just have a
third ground for permitting interim proceedings and that
be "Upon the denial of three or more motions filed in a
case" -- I don't care whether it's against the same judge
"under this rule by the same party."
HON. F. SCOTT McCOWN: I agree with Luke.
You've convinced me.
MR. SOULES: Once you get to the fourth
motion, the trial judge can go forward.
HON. F. SCOTT McCOWN: You've convinced me.
CHAIRMAN BABCOCK: Judge Brown.
MR. HAMILTON: Actually, Luke, doesn't that
just replace the (a) ?
MR. SOULES: No, because -- well, I don't
know. I guess it would.
HONORABLE ROBERT McCOY: I think it's very
important that you not put in "against a judge," and it's
just if three motions to recuse have been denied in a
case.
MR. LOW: Right. Right.
MR. ORSINGER: Yeah.
HONORABLE ROBERT McCOY: Because otherwise
you're not stopping anything from halting the,train.
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MR. ORSINGER: And I would argue against
replacing (a) because (a) is --
CHAIRMAN BABCOCK: Hold it, guys. Judge
Brown has been very patiently holding his hand up, so
Judge Brown.
HONORABLE HARVEY BROWN: Well, two points.
CHAIRMAN BABCOCK: As opposed to you,
Richard.
HONORABLE HARVEY BROWN: Allowing interim
proceedings, it seems to me, cannot include a judgment
because if the judge enters a judgment we're soon not
going to have a record on appeal, so we need to think
about the issue -- maybe they can do everything up to
signing a judgment but not entering a judgment, because
otherwise there will be no record to appeal from a
recusal.
The second thing, to me it seems like we
should have a more radical remedy, and that is by using by
analogy the Vexatious Litigation Statute that has come
out, and so I would say we should have something like the
first clause and then say, "The judge denying the third or
subsequent motion may enter an order enjoining a party
from filing any additional motions except with permission
of the court," which essentially -- and it's not the court
-- the Vexatious Litigation Statute right now says you
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have to go to the regional director or to the presiding
judge, but they have to come get permission basically to
file it.
That way you don't have your 16 motions,
and, you know, one thing we're ignoring by sanctions, it's
not just attorneys. It's all the court time spent on this
16 courts looking at this. So I think we should preclude
them from doing that, and they have lost their --
HON. F. SCOTT McCOWN: But there won't be 16
anymore because on the third one --
CHAIRMAN BABCOCK: The trial is going
forward.
HON. F. SCOTT McCOWN: The trial is going
forward.
HONORABLE HARVEY BROWN: But they may still
keep filing them.
CHAIRMAN BABCOCK: Skip Watson.
MR. WATSON: I just want to make sure that
Luke's proposal addresses the problems raised by Judges
McCoy and Harris. It sounds like we're assuming that the
third bad motion is against the same judge or a different
trial judge; but the example that got my attention was
where the third bad motion is against Chief Justice
Phillips deciding who should be hearing the recusal; and
if it's worded that the trial goes forward then we just
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have undone everything because the first recusal may have
been good, you see; but we're saying now because you had
three denied going up the train of deciding who is going
to decide whether the first recusal is good, in fact, the
neutral to decide whether the first recusal is good, you
lose all three strikes and the trial goes forward.
I think we need to make it clear that the
recusal goes forward, but the trial is still stopped. The
trial is stopped until the initial recusal is decided by a
proper judge to hear it. Does that make any sense?
HONORABLE WILLIAM HARRIS: Yeah.
HON. F. SCOTT McCOWN: No.
MR. YELENOSKY: Well, actually, I had the
same concern. I don't know the answer, but do we mean
that if we went up the chain, okay, you've had your third,
then the trial goes forward even though there hasn't been
any decision?
MR. WATSON: There's been no decision, no
appeal.
MR. YELENOSKY: Three have been filed.
There's been no decision at all on any of them. Do we
mean that that trial goes forward, and if so, before whom?
CHAIRMAN BABCOCK: But keep in mind the
statute doesn't talk about winners or losers. I mean, the
statute just says "three motions."
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HON. F. SCOTT McCOWN: Well, wait. I don't
think it can work the way they have just said, and let me
go -- I think I have got Luke's idea in some language.
If you look at interim proceedings,
subdivision (4), let's say there's been one motion to
recuse filed, but it doesn't fit inside subdivision (4).
The proceedings stop. That motion to recuse has been
ruled on. It's been granted or it's been denied.
Now you have a second motion. Well, that
second motion doesn't come within interim proceedings
either, so it's been ruled on. It's been granted or
denied. So now you have a third motion. You're in a
disciplinary proceeding. The Bar is going against a
lawyer. He makes his third motion to recuse.
If you took Luke's idea, what "Interim
Proceedings" would say was you would refer the motion to
the presiding judge. So the motion would go on and be
heard through our normal procedure, a record would be
created, but you would go forward under a third exception.
We've got two exceptions now. There would be a third
exception, which would read, "when the motion is the third
motion to recuse filed in the case by a party."
MR. SOULES: "Fourth."
HON. F. SCOTT McCOWN: You want to make it
the fourth?
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MR. SOULES: Well, that's what our rule is
right now. You've got to have denial of three before you
would run into sanctions.
HON. F. SCOTT McCOWN: Well, this would be
denial or granted, is what I would say.
MR. SOULES: Oh, no.
HON. F. SCOTT McCOWN: if it's your fourth
motion to recuse, you can go forward.
CHAIRMAN BABCOCK: Well, let's be faithful
to the statute. The statute says "third or subsequent
motion," so...
HON. F. SCOTT McCOWN: All right. Third.
And it doesn't say denied or granted, or does it?
CHAIRMAN BABCOCK: Does not.
HON. F. SCOTT McCOWN: So, Luke, I can see
your point. If you've won a few, why should you be
penalized, but all this would be saying is if it's your
third motion to recuse, the judge may go forward. He
doesn't have to. He could make a discretionary decision
that it's a good motion or a close motion or you shouldn't
be penalized or whatever, but he could also make a
discretionary decision that, yeah, you won a few, but they
were probably BS and you have lost a few and it's a very
important case and you're just trying to evade discipline.
And you're not being denied your hearing. You're going to
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get it, and if you win, everything he does could be set
aside, but he's going to go forward.
CHAIRMAN BABCOCK: Judge Harris.
HONORABLE WILLIAM HARRIS: I still think
that requires the judge that sits on the recusal to make
findings, and I think that's improper. I think that
the -- if the judge whose recusal is sought gets a motion
that, you know, for whatever procedural remedy you guys
fashion, it needs to be handled just exactly as a first
recusal motion. Look at it, say, "There are grounds, I
therefore recuse myself," or say, "There are no stated
grounds, and I therefore decline to recuse myself and
forward this to you, Mr. Administrative Judge," along with
any accompanying -- you know, just the language of the
statute, but on the ones where the proceedings go forward,
not make findings, not do anything except just continue
the trial.
HON. F. SCOTT McCOWN: That's what this
would provide.
HONORABLE WILLIAM HARRIS: And pretend --
put on the blinders, pretend there has been no motion
filed whatsoever. When the administrative judge calls me
and says, "Judge Harris, the recusal motion is a good one,
and you are recused," at that point walk off.
HON. F. SCOTT McCOWN: Okay. I think that's
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what I just proposed. If you look at subdivision (4),
"Interim Proceedings," "after referring the motion to the
presiding judge," so that's what you do. You refer it to
the presiding judge, but you're authorized to go forward
under a third exception when the motion is the third
motion to recuse that's been filed in the case by the same
party. So I think I am proposing what you just sketched
out.
CHAIRMAN BABCOCK: Justice Hecht.
JUSTICE HECHT: But it would also apply to
the other circumstance where you have in essence vertical
motions, so that if you moved to recuse the trial judge,
it's the first motion, he sends it to the regional
presiding judge, who assigns a judge to hear it. The
party moves to recuse that judge. That goes to Chief
Justice Phillips. The party then moves to recuse the
Chief Justice. He's back in the trial court, and you're
ready to go forward at the discretion of --
HON. F. SCOTT McCOWN: The judge.
JUSTICE HECHT: The trial judge.
MR. YELENOSKY: Which trial court?
JUSTICE HECHT: The original trial court.
MR. CHAPMAN: That's the problem I see, that
you're bringing it back to the same judge that there may
have been a good motion to recuse.
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JUSTICE HECHT: Well, but if he's chancing
enough to move to recuse the Chief Justice of Texas and
just -- that's just one of the risks. I mean, what are
the chances that the Chief Justice is going to be recused
from assigning a judge to hear the recusal motion? The
chances of that are just almost zero, I would think.
MR. CHAPMAN: Well, but what about the
nonvertical situation? In the vertical situation I
understand that, but if it's a situation where, in fact,
the party has a good basis for the motion in the first
instance and because of the circumstance ends up with
three motions? In order to solve the problem for the
unscrupulous, we are really causing a problem for the
litigant that brings the good motion. But that's the
concern I have.
CHAIRMAN BABCOCK: Luke.
MR. SOULES: Well, I think given what
Justice Hecht just said here, that would not be my
understanding of what should take place, that the third
motion challenging Judge Phillips triggers the viability
of the original trial judge to go forward. It seems to me
like what we ought to do is change in the very first part
of the interim proceeding and say, "The judge may proceed
with the trial or hearing" instead of "the case." "As
though no motion had been filed."
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That would enable, of course, Judge
Phillips to proceed with the recusal hearing to recuse or
not recuse the recusal judge, but it would not empower the
originally challenged trial judge to go to trial, and I
think all we really need to fix is just the series of
recusals stops someplace so that there can be a recusal
hearing, and then Judge Phillips can say the recusal judge
is not disqualified. The recusal judge can say, "The
trial judge is not disqualified, so go to trial," and so I
don't think we ought to leave it vague as to whether or
not the trial judge could tee up a jury case just because
Judge Phillips has been challenged.
CHAIRMAN BABCOCK: Richard.
MR. ORSINGER: We started drafting and then
backed off of any recusal procedures in the trial rules
relative to the Supreme Court. We started to draft
procedures of what would happen if somebody tried to
recuse the presiding administrative judge before they made
an assignment or the recusal judge who received the
assignment or the Chief Justice who was picking a
replacement for the presiding judge who had been recused.
We don't actually acknowledge that
procedure, if I am not mistaken. And so we're talking now
about imposing a sanction for someone doing something that
we don't say they can do, and I think that there is some
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wisdom in not recognizing that you have a procedure called
recusing the presiding administrative judge or recusing
the judge who was assigned or recusing the Chief Justice
of the Texas Supreme Court. When we discussed this
initially we were afraid it might invite pro se litigants
to do it when it might not otherwise occur to them, and so
if we are going to weave the vertical recusals into our
parallel proceeding and our sanction rule, we're
implicitly overturning our prior decision not to provide
procedures for those events.
HON. F. SCOTT McCOWN: Could I --
CHAIRMAN BABCOCK: Could I ask just one
question, Scott?
HON. F. SCOTT McCOWN: Okay.
CHAIRMAN BABCOCK: The vertical recusal, is
that covered by the statute?
MR. ORSINGER: It says "tertiary," and no
one really knows. "Tertiary" isn't defined.
CHAIRMAN BABCOCK: Well, but it also says
"filed against a district court, statutory probate court,
or statutory county court judge."
MR. HAMILTON: It doesn't include the
Supreme Court.
CHAIRMAN BABCOCK: No, it doesn't.
MR. ORSINGER: Well, but does it include a
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district judge who is assigned to hear your recusal
motion, and does it apply to a presiding administrative
judge who assigns somebody to hear the recusal motion?
CHAIRMAN BABCOCK: Well, it doesn't say
that, but maybe it does.
MR. ORSINGER: Doesn't it say that? It may
not say the Chief Justice of the Texas Supreme Court, but
if you --
CHAIRMAN BABCOCK: It says "a district
court, statutory probate court, or statutory county court
judge."
MR. WATSON: So the tertiary statute is --
MR. SOULES: But the court does -- that's
who they send, is another district court judge to hear a
district court recusal. I think it's covered.
JUSTICE HECHT: When Senator Harris proposed
this legislation we did have some brief conversation with
his staff about whether it included, if you will,
horizontal motions or vertical motions or both, because
you don't ever get to the Chief Justice if you keep
recusing the recusal judge; but then to get around that,
the regional judge says, "Okay, well, then I will assign
myself," and then if you move to recuse him then that's
when you have to go to the Chief Justice.
HON. F. SCOTT McCOWN: Could I point out,
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just empirically, we know that we have got some people who
don't want to go to trial and will file multiple recusal
motions in an effort to stop that. That's the evil that
we know exists and that we're trying to write a rule to
prevent. Does anybody really think that there is going to
be very many occasions when a truly worthy, innocent party
is going to find themselves in front of three judges for
whom they have got a good ground for recusal and that that
third judge is going to be so venal that he's going to go
forward with the trial anyway and that the guy is going to
lose and that the recusal procedure is not going to
ultimately vindicate him?
That seems to me to be such an unlikely
scenario that we're trying to guard against that we ought
to just be able to say when it's the third motion to
recuse filed in a case by the same party, that the trial
judge can exercise discretion to go forward. We'll still
have the recusal procedure, and if ultimately the recusal
is found to be valid, we'll have to back up and do it
again.
MR. SOULES: Well, that's a compromise that
I was getting to with my motion. I think if you're --
you've got a good grounds to go against a judge for
recusal you probably should be able to stop everything,
every time, but that's probably unrealistic. So if it's
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the third motion by the same party in the same case and
you still get a hearing on the recusal and you can still
develop your record, perhaps it is post-judgment, but
you're either going to have an appellate point that you
weren't given the opportunity during the trial court's
plenary jurisdiction to develop the record, in which event
there should be a remand at least for that.
Or you weren't given the opportunity 'til
later, but there is the record while the trial court had
plenary power, even if it's after judgment. I think
someone made that point, and you have a record that -- you
know, that's probably enough due process, and my
experience has been that once the trial judge has been
recused ordinarily there's some pretty careful
consideration given to who replaces that judge for
purposes of the trial.
So you've got one additional chance, if a
judge is assigned to replace the original judge that you
can't live with because the judge is recused or should be
recused. Now you're to the third time, and you've got
reasonable judges making the appointments, and I think
there is enough protection there to just go ahead and say
the trial judge can proceed or the recusal judge can
proceed or Chief Justice can proceed if this is the third
motion, but they proceed with what is on their plate. The
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third -- on the plate of the judge who is the subject of
the third motion. They don't proceed and cascade back to
the trial judge to start the trial.
MR. CHAPMAN: Yes. I think that's what --
MR. SOULES: And I think that's enough. I
think that takes care of our problems.
CHAIRMAN BABCOCK: Stephen.
MR. YELENOSKY: Well, what about -- I think
we do have to look at the vertical aspect or we're not
getting at the problems that Judge McCoy and Harris have
brought out, but what about --
MR. SOULES: I thought we were.
MR. YELENOSKY: Well, I know, but Richard
was suggesting that maybe we not look at that, but what
about saying that recusal at the vertical level never
stops the trial from going forward because you could
still -- I mean, if you recuse, it's denied, it goes to
the administrative judge, he assigns another judge, you
could still move to recuse that second trial judge, right?
So that's two, but your recusal of the administrative
judge itself wouldn't stop the trial.
MR. SOULES: That's the third time, and it
wouldn't stop.
MR. YELENOSKY: Well, no, I'm suggesting
something different.
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MR. SOULES: Oh, okay.
MR. YELENOSKY: Which is that you just count
recusals against the trial judges. On the third recusal
against a trial judge then you have the interim proceeding
that goes forward and say that recusals of the
administrative judge or the Chief Justice don't in
themselves stop the proceeding from going forward.
CHAIRMAN BABCOCK: Carl.
MR. HAMILTON: Two things. First of all,
are we trying to draft a rule that implements the statute,
or are we just using that as a guideline, because a lot of
these comments are way beyond what's in the statute?
CHAIRMAN BABCOCK: Yeah. I think we're
doing two things. We're trying to cure the problem the
statute was intended to cure, but we're also trying to be
more comprehensive in our treatment.
MR. HAMILTON: I mean, if we come up with
something that Senator Harris isn't going to consider that
as changing the statute or whatever?
CHAIRMAN BABCOCK: Senator Harris is
supportive of our effort to try to come up with a
comprehensive recusal rule as long as we take care of the
problems that originally led to his suggestion of the
statute. Judge McCoy, is that fair to say?
HONORABLE ROBERT McCOY: The burr under the
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saddle was a vertical case.
MR. SOULES: Well, does that take care of it
if the third one is -- if you file a motion to recuse the
trial judge that's timely filed, you get a recusal judge
appointed, file a motion to recuse the recusal judge
that's timely filed. That's two. Now you've stopped both
of those, but whenever you've filed a motion to recuse the
presiding judge of the region from coming down or sending
somebody else, that judge can go forward with the recusal
process.
HONORABLE ROBERT McCOY: But does your
method come all the way back down to the trial court?
Let's just say we went through Phillips in your example.
If Phillips can go ahead and rule on the recusal of the
presiding judge, can the presiding judge then go ahead and
rule on the original --
MR. SOULES: Yes.
HONORABLE ROBERT McCOY: And then come on
down and he can rule on the trial judge.
MR. SOULES: But because of the consequences
of the downward streaming rulings Phillips says the
regional judge is not disqualified or recused. So that
empowers that judge to act. That judge says the recusal
judge is not and then --
HON. F. SCOTT McCOWN: Well, okay, but the
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problem with that, Luke, the reason that doesn't quite get
at the evil that's being supposed is because it works
vertically in a single recusal proceeding, but it doesn't
do anything about the next recusal proceeding. So let's
say that you cascade back down --
MR. SOULES: Well, that's the fifth. That's
the fifth. That judge can go to trial. That's the fifth
in the same case. You've had all these motions
vertically. Now you're back down, and say the trial judge
gets recused by the recusal judge. New judge is assigned.
That next motion is the fifth motion. The replacement
judge can go to trial.
HON. F. SCOTT McCOWN: Okay. So what's your
language that you're proposing?
CHAIRMAN BABCOCK: Let me suggest this, if
you can do it, Scott, because I know you've got to be in
court at some point. Over the lunch hour could I ask
Judge McCoy and Judge Harris, if you want, Judge McCown,
Luke, and either Carl or Richard to get language for us?
And I think that we've got -- conceptually we're pretty
much there. We're going to substitute something in
(4)(a). I think it's really a substitution more than a
(4)(c), though, and we're going to delete (11)(b); and if
we do that and maybe come back with some language right
after lunch, Judges McCoy and Harris, if you can stay over
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the lunch hour to accomplish that, and then we will talk
about it --
HON. F. SCOTT McCOWN: Lunch is free, so...
CHAIRMAN BABCOCK: Lunch is free. There is
such a thing as a free lunch here. Richard, is that okay
with you?
MR. ORSINGER: I'd like to say something
before you recess.
MR. HAMILTON: I would, too.
CHAIRMAN BABCOCK: Well, we're not going to
recess, but we have another guest here that I want to try
to get in before lunch, so --
MR. ORSINGER: I would like to say something
before we go about the drafting because --
CHAIRMAN BABCOCK: Okay. Say your piece.
MR. ORSINGER: We have previously only
written about the trial going forward, and under Luke's
discussion we're talking about a rule saying that the
recusal process will go forward, so it's going to require
us to go into new territory, which is about the recusal
process itself is not stayed.
CHAIRMAN BABCOCK: Luke doesn't think so.
MR. ORSINGER: Secondly, under the sanction
rule of (11), there''s still legitimate reasons to require
a sanction of someone who has lost three motions. I don't
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think we ought to throw that out, but I think we should
quit using that as the trigger for when we have an interim
proceeding.
CHAIRMAN BABCOCK: That's agreed, I think,
by most everybody. Okay. So let's do that, okay, over
lunch and then right after lunch we'll see -- I'm sure you
guys will have perfect language, it will take two minutes
to unanimously pass. Now, before lunch we've got about
five minutes. We have --
(Off the record discussion.)
CHAIRMAN BABCOCK: Well, I'm just informed
that the free lunch won't be here until 1:00.
HON. F. SCOTT McCOWN: I would not have come
today if I had known that.
CHAIRMAN BABCOCK: That is a serious
problem. Well, we'll deal with that in a second.
Mr. Steves, I know you're here wanting to
talk about a different rule, and we want to be respectful
of your time. How long do you want to take addressing us
about Rule 3(a) ( 5)?
MR. STEVES: About three minutes.
CHAIRMAN BABCOCK: Okay. We're moving off
of recusal onto Rule 3(a)(5), which is an agenda item for
Saturday, but Sterling Steves could only be here today.
MR. STEVES: Thank you, Mr. Chairman. I
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will be very quick about this because this is a really
simple matter. You know, when I've ever filed a motion to
recuse a judge I figured I had to take the feathers of the
chicken and so did he, but I want to congratulate the
committee on what you've done in the past. Particularly,
the rules pertaining to discovery have been very good. It
has been very nice to shut other lawyers up during the
deposition.
I have had a great deal of experience with
Rule 3, probably as much as anybody around, and that's the
reason that I have been communicating with them, and this
year I took back over the colation of the rules book, the
local rules in the district courts in Texas at the request
of Mathew Bender and LEXIS. Years ago when I first
started this book I was complaining to Joe Greenhill about
the fact that I could not get the local clerks to respond
to my requests to send me a copy of their local rules, and
he said, "Well, you know they don't respond to us either."
But it is a problem, and that is the number
that is getting the district clerks to respond to a
request for a copy of the local rules. I have
communicated with every district clerk in this state, and
the issue of -- the last issue of my book that has come
out is a completely updated version or updated copy of all
the local rules. We had to really work hard doing it to
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get it. We wrote up to five letters to get them to the
clerks and then as we didn't get them from the clerks, we
would telephone and try and get them, a number of calls,
this, that, and the other.
We got all kind of responses from the
clerks, and some of them are, well, like in Tarrant County
the clerk said, "You can come down here and pick it up if
you want to," but the others say, "Well, we want to charge
you a fee of whatever" and then it varies from county to
county. Others say that they are on the website and you
can get it there, but in some counties like McKinney you
have got some judges have their rules on -- their rules
you can obtain by -- on a website, but the rest of them in
that county you can't.
So -- and probably the long term is that
people will get it on the website, and it may resolve
itself over a period of five years. I don't know. But
I've found that since I wrote all these people and tried
to get the rules that I think that I'm having the
identical problem that any lawyer would have in any county
trying to get the rules, and they simply do not respond,
and I suggested in a letter to my old friend Carl
Hamilton. Hi, Carl. I haven't seen Carl in a long time.
He and John Estes and I had a case in Laredo years ago we
thought would never end, but it did finally.
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But what we're suggesting is what I'm urging
the committee do, is make some requirement on the district
clerk to respond and send a copy of the local rules,
postage prepaid, to the lawyer requesting it within a
period of time. I suggested ten days. Now, I don't think
that's an onerous thing, but some say, "Well, we don't
want to waste the postage," and "We don't want to do
this," and so forth; but getting them to respond to this
is a difficult thing; and this is a problem that all
lawyers are going to have trying to get a copy of the
out-of-town rules of the district court.
The reason I first started this book years
ago was because I couldn't get the -- I was unaware of
local rules in Taylor County in Abilene and almost got
sandbagged just before trial, and Bob Pickett, who was my
co-counsel that told me on Wednesday I had to have
everything heard or I waived it before the trial on
Monday, so I had to get out to Abilene quickly and have a
hearing on my motion, including motion in limine. So I
would urge the consideration of the committee to put
something in there to make them respond to any lawyer that
writes in and asks for a copy of the local rules.
CHAIRMAN BABCOCK: And, Mr. Steves, thanks
very much for being here. We're going to debate this
issue tomorrow, as you know, and I know you weren't able
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to be here tomorrow.
MR. STEVES: I'm sorry I can't be here
tomorrow.
CHAIRMAN BABCOCK: Well, I'm sorry we
couldn't adjust our agenda to accommodate your schedule,
but the debate is a matter of public record. It will be
on our website when the court reporter types it up.
MR. STEVES: Thank you very much.
CHAIRMAN BABCOCK: You bet. Thank you, sir.
Okay. Our timing I guess is a little off because of the
lunch situation, and they're setting up, so it may not
take an hour, but I still think it's a good idea to have a
smaller group sit out and get some language that we can
look at and debate. So, Judge McCoy -- Ralph, could I get
Judge McCoy's attention again for a second?
MR. DUGGINS: Sorry.
CHAIRMAN BABCOCK: Once we get done with
this issue, if we ever get done with it, this last one,
have we pretty much addressed all of the issues?
HONORABLE ROBERT McCOY: Very well. Thank
you. I appreciate you allowing me to come speak.
CHAIRMAN BABCOCK: Richard.
MR. ORSINGER: I'm concerned about the
previous point that Judge McCoy made about the financial
interest question and whether the old rule is carried
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forward in the new rule. As I read the new rule, we have
dropped any control over the judge who himself or herself
has a financial interest and are carrying forward only
situations in which a relative of the judge has a
financial interest as a grounds for recusal, and I would
like for some other people to read the rule and see if
they agree with me because we did that inadvertently, and
it was called to our attention, and I think we tried to
fix it, and I am concerned that we haven't fixed it.
CHAIRMAN BABCOCK: Are you talking about
subparagraph (b)?
MR. YELENOSKY: We agreed to fix it.
CHAIRMAN BABCOCK: Carl.
MR. HAMILTON: My recollection, Richard, is
that we discussed that and decided that if.the judge
himself had a financial interest it couldn't be fixed.
MR. ORSINGER: I know that, but where does
it say that the judge himself having a financial interest
is a ground for recusal?
MR. GILSTRAP: It's disqualification.
HONORABLE SCOTT BRISTER: Why does it need
to be a ground for --
MR. ORSINGER: It's a ground for
disqualification and not recusal?
MR. GILSTRAP: Yeah.
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MR. ORSINGER: Okay. Then that allays my
concern. That's how we fixed it, and I forgot. Thank
you.
CHAIRMAN BABCOCK: Okay. Anybody have
anything else about this rule? Yeah, Carl.
MR. HAMILTON: Judge McCoy skipped over one
thing and I thought was a good point, and that is on
referral we say, "Notwithstanding any local rule or other
law," and his point was that we can't do anything to
affect other law.
CHAIRMAN BABCOCK: You're talking about (3)
now?
MR. HAMILTON: (3), yes.
CHAIRMAN BABCOCK: Okay.
MR. HAMILTON: Maybe that ought to come out.
CHAIRMAN BABCOCK: "Notwithstanding any
local rule or other law after a motion to recuse or
disqualify has been filed, no judge may preside," etc.,
etc. Okay. What do people think about that? Bill?
PROFESSOR DORSANEO: I don't have any
thoughts about that.
CHAIRMAN BABCOCK: No thoughts about it.
Justice Duncan?
HONORABLE SARAH DUNCAN: I have no thoughts.
CHAIRMAN BABCOCK: No thoughts about it.
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HONORABLE SARAH DUNCAN: I said "no
thoughts."
CHAIRMAN BABCOCK: I saw that, too, and it
struck me as a good point, but why did that language sneak
in there to begin with? Any thoughts about this, Justice
Hecht?
JUSTICE HECHT: What are we talking about?
CHAIRMAN BABCOCK: In the rule it says --
we're talking about (e)(3), "Referral." Or "Procedure,"
I'm sorry, "Procedure," and (3) is "Referral." It says,
"Notwithstanding any local rule or other law," and the
point was made that a Rule of Procedure shouldn't be able
to trump a statute, which this is interpreted to include.
So I suppose the proposal would be to strike the words "or
other law" and "notwithstanding any local rule."
JUSTICE HECHT: Well, there was a debate
about it. I don't remember it exactly. Didn't we talk
about whether some people did this by order, or maybe we
were referring to Rule 330 that allows judges to transfer
benches?
CHAIRMAN BABCOCK: That's what it was.
HONORABLE SARAH DUNCAN: That's what it was.
That's what it was.
JUSTICE HECHT: And so we didn't know
exactly how to characterize all of that, so we kind of
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came up with a general phrase.
CHAIRMAN BABCOCK: And, Judge McCoy, of
course, interpreted it, as probably most people would,
"law" being a statute as opposed to a rule.
HONORABLE ROBERT McCOY: Yeah.
CHAIRMAN BABCOCK: So maybe we should say
"Notwithstanding any local rule or Rule of Procedure."
HONORABLE SARAH DUNCAN: That's actually a
constitutional exchange of benches, and I think all we
were trying to say is you can't use the exchange of
benches provision to avoid proper recusal process.
JUSTICE HECHT: Right. We were trying to
say that you couldn't use Rule 330 as an end runaround the
regional judge, but I think we even talked about 330 being
constitutional, being based on a provision in the
Constitution.
CHAIRMAN BABCOCK: Constitutionally
compelled.
JUSTICE HECHT: And I think that's why we
took the generic "other law" language out.
CHAIRMAN BABCOCK: All right. Can we do
that?
HON. F. SCOTT McCOWN: Well, we've talked
about that, and we've had a theory proposed as to how we
could and a theory proposed as to how we couldn't, and
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we've decided to go forward.
MR. SOULES: That's right.
CHAIRMAN BABCOCK: All right. Well, I'm
against revoting on things as long as we have considered
it. Bill.
PROFESSOR DORSANEO: On that point about
waiving the motion or waiving the grounds, I'm happy
enough, if you are, to leave the meaning of that language
up in the air, but it might be a good idea to make it
clear what's waived.
CHAIRMAN BABCOCK: Okay. And you're talking
now about subparagraph ( e)( 2)?
PROFESSOR DORSANEO: I think so, yes.
MR. ORSINGER: Yes, it is. (e)(2).
CHAIRMAN BABCOCK: Stephen.
MR. YELENOSKY: Chip, on the "other law,"
weren't we really just saying that notwithstanding the
interpretation that some people might give to the other
laws, but obviously we can't do something notwithstanding
a statute, and Constitution, and I guess the sense was that
some people were interpreting either the Constitution as
requiring that they -- that judges have the full
prerogatives they have under that other rule; and we were
saying, "No, it didn't have to be that way. This was
consistent with the Constitution."
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So maybe it's academic, but I don't like the
idea of saying "notwithstanding other law" because we
really can't do that. Is there another way to say what we
really meant?
CHAIRMAN BABCOCK: Why don't you see if you
can find where it is in the transcript and see if we
adequately discussed it? If we didn't then we can talk
about it some more.
JUSTICE HECHT: There are local rules
already that arguably impinge on the constitutional
provision about exchanging benches, because it's quite
common for the judges in a county to agree that it will
only be done this way. I don't know of any challenge ever
being made to a rule like that, but they do -- virtually
every big county says, "Well, yes, we can exchange
benches, but you can't do it except this way."
CHAIRMAN BABCOCK: Okay. What else? Any
other? Yeah, Frank.
MR. GILSTRAP: Chip, this was in Judge
McCoy's letter. He didn't bring it up, probably because
he thinks we will pick it up as a matter of course, but we
may not, and that is that (b)(9) and (b)(12) duplicate
each other.
MR. HAMILTON: Yeah. That's just a
drafting error.
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MR. GILSTRAP: And it just needs to be taken
out, but just don't need to --
MR. HAMILTON: (b)(12) needs to be taken out
because it was moved over to another spot.
MR. GILSTRAP: And then the old (9) and (10)
became the new (10) and (11), and there is at least one
place in the rules where that cross-reference wasn't
changed, and that is in the last sentence of (e)(1), the
reference to (b) (9) and (b) (10) I believe should be the
current (b)(10) and (b)(11), would solve that.
CHAIRMAN BABCOCK: Everybody agree with
that? Okay. What else, Frank? Anything else?
MR. GILSTRAP: That's it.
CHAIRMAN BABCOCK: Assuming we get this
language issue dealt with, are we comfortable that we
would then have a rule that would cure the problems that
the statute was intended to cure as well as fulfilling our
charge from the Supreme Court to solve the things the
Court asked us to look at?
Justice Duncan.
HONORABLE SARAH DUNCAN: Are we not going to
take up Bill's suggestion that if we don't even know what
we mean by (e)(2), perhaps it's not the best rule we will
have generated?
CHAIRMAN BABCOCK: Well, I think, yeah, we
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can certainly take that up. I don't know that there is --
HON. F. SCOTT McCOWN: Luke has theI
language.
CHAIRMAN BABCOCK: Good. Let's address
Sarah's point first. On the waiver issue, you know, I am
not sure that everybody thinks we don't know what we mean
here.
HONORABLE SARAH DUNCAN: We've had
disagreements expressed about what (e)(2) means.
CHAIRMAN BABCOCK: Yeah. There is a --
HONORABLE SARAH DUNCAN: Today.
CHAIRMAN BABCOCK: Yeah. Yeah. I guess
it's in the nature of a motion for rehearing. We have
debated this provision a lot. Maybe we need to debate it
some more. If everybody thinks we do then --
HONORABLE SARAH DUNCAN: All I'm saying is
that there have been different interpretations placed on
(e)(2) today by numerous members of the committee that
generated the rule, and that might indicate that either
it's not clear or it doesn't say what was intended to be
said.
CHAIRMAN BABCOCK: Yeah. Well, let's do
this. Let's see -- let's see if everybody thinks we ought
to dig back into (e)(2), and if everybody thinks we should
then we will do it. If they don't, we won't. Frank.
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MR. GILSTRAP: Let me raise one
consideration. One of the goals, of course, here is to
have the statute harmonize with the rule. Either we pass
a rule that Senator Harris thinks works and addresses his
concerns and he possibly, you know, proposes to change the
statute or even repeal it. And he hadn't said he's going
to do that, but he said he might; and, you know, the
Legislature is in session, the clock is ticking. It may
be too late to do it this session, but to the extent we
can get it done, I think that counsels against dragging
this out.
CHAIRMAN BABCOCK: Yeah. I think the Court
is looking for us to send them this rule at the conclusion
of this meeting, so -- but we have got plenty of time.
It's just going to push other things up if we do.
Richard.
MR. ORSINGER: A way to bring it to a head
is to consider the following --
CHAIRMAN BABCOCK: Go ahead.
MR. ORSINGER: A way to bring it to a head
is to consider the following change to (e)(2). "A motion
to recuse is waived for a trial or hearing if filed later
than the tenth day prior to the date the case is set for
trial or hearing," or "for that trial or hearing." That
would make it clear that you've waived it for purposes of
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that procedural event but not for subsequent procedural
events, and if that language is clear enough to everybody,
we can vote it up or down and then at least we will have a
record on what we think it means.
CHAIRMAN BABCOCK: Are you talking about
eliminating (a), (b), and (c) and (d) ?
MR. ORSINGER: No. All I'm talking about is
changing the second sentence in (e)(2) to say, "A motion
to recuse is waived" and then insert "for a trial or
hearing" and carry on "if filed later than the tenth day
prior to the date the case is set for trial or hearing."
MR. CHAPMAN: That takes care of it, "that
trial or hearing."
MR. ORSINGER: "That trial or hearing." So
that means that makes it crystal clear, I think, that
either you waived it for the whole case or you're not
waiving it for the whole case, your vote on that. You're
taking sides on that issue.
MR. SOULES: Second.
CHAIRMAN BABCOCK: All right. And Luke
seconds that, which is really a third since Sarah started
all of this, but that's okay. And so it sounds like
that's something we ought to discuss, so apparently lunch
is ready. Why don't right after lunch let's -- and,
Scott, you and Luke have got language?
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HON. F. SCOTT McCOWN: Luke has it, and it's
good.
MR. SOULES: I'm going to try to print it
where it can be read.
CHAIRMAN BABCOCK: Let's take that up right
after lunch. We are going to take an hour's lunch today
for a number of reasons, so at 1:15 we will take up that
issue and then we will take up the issue of the waiver
that Sarah and Richard and Luke have talked about. Okay.
And when we're done with that we ought to have a rule.
Okay. We're in recess.
(A recess was taken at 12:17 p.m., after
which the meeting continued as reflected in
the next volume.)
Anna Renken & Associates
(512) 323-0626
3425
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* * * * * * * * * * * * * * * * * * * *
CERTIFICATION OF THE MEETING OFTHE SUPREME COURT ADVISORY COMMITTEE
* * * * * * * * * * * * * * * * * * * *
I, D'LOIS L. JONES, Certified Shorthand
Reporter, State of Texas, hereby certify that I reported the
above meeting of the Supreme Court Advisory Committee on the
12th day of January, 2001, Morning Session, and the same was
thereafter reduced to computer transcription by me.
I further certify that the costs for my
services in the matter are $353 .00
Charged to: Jackson Walker, L.L.P.
Given under my hand and seal of office on
j this the a,',3A4d day of 2001.
ANNA RENKEN & ASSOCIATES
1702 West 30th Street
Austin, Texas 78703
(512)323-0626
D'LOIS L. JrES, CSR
Certification No. 4546
Certificate Expires 12/31/2002
#005,062DJ/AR
Anna Renken & Associates
(512) 323-0626